Delhi District Court
Smt. Sunita vs Sh. Vijay Pal @ Mohd. Sabir on 27 February, 2023
IN THE COURT OF SHRI CHANDER MOHAN,
ADDITIONAL SESSIONS JUDGE07, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 279 of 2019
IN THE MATTER OF:
1. Smt. Sunita
W/o Sh. Vijay Pal@Mohd. Sabir
2. Ms. Sujata
D/o Sh. Vijay Pal@Mohd. Sabir
Both Resident of:
Post Office& Village Jharsa,
Gurugram, Distt: Gurugram, Haryana ........Appellants
Versus
Sh. Vijay Pal @ Mohd. Sabir
S/o Lt. Tukiki Ram
R/o H. No. 54/2, BlockA
Pradhan Wali Gali, Dagarpuria Mohalla
Village Johri Pur, Delhi110094 ..........Respondent
Instituted on : 02.08.2019 Reserved on : 24.02.2023 Pronounced on : 27.02.2023 CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 1 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita AND CRIMINAL APPEAL NO. 251of 2019 IN THE MATTER OF: Sh. Vijay Pal @ Mohd. Sabir S/o Lt. Tukiki Ram R/o H. No. 54/2, BlockA Pradhan Wali Gali, Dagarpuria Mohalla Village Johri Pur, Delhi110094 ..........Appellant Versus 1. Smt. Sunita W/o Sh. Vijay Pal@Mohd. Sabir D/o Sh. Goverdhan Dass Nangla, R/o H. No. 385, near Telephone Tower, Govt. High School, Punjab National Bank, Post Office& Village Jharsa, Gurugram, Distt: Gurugram, Haryana ...........Respondent Instituted on : 16.08.2019 Reserved on : 24.02.2023 Pronounced on : 27.02.2023 Judgment CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 2 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita
For the purpose of convenience, the parties shall be referred to as per the rank and status before the Trial Court i.e., wife shall be referred to as Aggrieved/complainant and husband shall be referred as respondent no. 1
1. Vide impugned order dt. 01.06.2019, husband (who shall be referred to as respondent no. 1) has been ordered to pay an interim maintenance of Rs. 15000/ per month to the aggrieved/wife from the date of order.
2. Both the parties i.e., aggrieved and respondent no. 1 have come in appeal against the said order: aggrieved seeks enhancement of the amount to Rs. 40,000/ per month and that to from the date of her application for interim maintenance and not from the date of order as has been awarded by the Ld. Trial Court and also litigation expenses to the tune of Rs. 55,000/. Further, the daughter of the aggrieved is also a coappellant and it is her grievance that refusal by the Trial Court to grant interim maintenance to her on the ground that she is well qualified and has attained majority etc contrary to the law. Husband i.e., respondent no. 1 has preferred a cross appeal in which she seeks to altogether set aside the impugned interim order dt. 01.06.2019. Both the appeals are taken together and shall be disposed of by this consolidated order.
3. Before adverting to the grounds taken by both the parties in their respective appeals, it shall be opposite to briefly refer to the facts necessary and relevant for decision of both the appeals.
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4. A complaint was filed by the aggrieved /complainant Sunita and also her two minor children Sushtant and Sujata through her (who were complainant no. 2 & 3 before the Trial Court) against respondent no. 1 and respondent no. 2 Devdut (Devar of aggrieved) on 04.01.2009 seeking protection orders U/s 18, residence orders U/s 19, interim monetary relief U/s 20, compensation U/s 22 etc under DV Act before the concerned Mahila Court. As per the averments/DIR report, aggrieved was married to respondent no.1 on 30.10.1990 at village Jharsa near district Gurgaon, Haryana according to Hindu rights and ceremonies 01.06.2019 ; that two children Master Sushant and a girl kumari Sujata were born out of this wedlock. The complainant/DIR Report further mentions about the allegations of demand of dowry, using filthy language against the applicant and her parents, slapping and kicking her, forcing for to do household work like dusting, washing clothes, cooking food all day without rest, slapping her by respondent no. 1 infront of family members, abusing her of being of bad character, taunting her, subjecting her to mental torture and physical violence and assault, threatening her, not providing sufficient maintenance to her and also to her children, completely neglecting the children and further committing atrocities both mental and physical upon the aggrieved and her minor children etc.
5. The Ld. Trial Court issued the summons to respondents on the above complaint vide order dt. 04.01.2009. Thereafter, respondents put up their appearance and filed their reply. In their reply, the respondents denied each and every allegations. It was averred in the reply that aggrieved was living separately from the respondent no. 1 for last more than 14 years, therefore, provisions of DV Act cannot be invoked. It was further averred CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 4 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita that the allegations levelled in the present complaint were also similar to the complaint dt. 15.08.1996 on the basis of which an FIR bearing no. 912/1996 was registered U/s 498 A/406 IPC in PS Sadar, Gurgaon but the respondent was acquitted vide judgment dt. 07.08.2006. It was further averred in the reply that the respondent no. 1 is not Vijay Pal but Mohd. Sabir who embraced Islam on 16.10.2022 through proper procedure and his name has also been changed in the official record vide office order dt. 27.09.2004. During the course of proceedings, the parties filed their respective income and expenditure affidavit.
6. It is pertinent to mention here that initially the main complaint was not accompanied by any application seeking interim maintenance but the same was subsequently filed during the pendency of the above case on 17.08.2018 by the aggrieved for herself as well as for her major daughter which was stated to be of marriageable age.
7. In his income affidavit filed by the respondent no. 1, he declared his educational/professional qualification as MA from Delhi University and his occupation to be working as a Government employee with designation of Section Officer in New Delhi Municipal Council and having a gross salary of Rs. 90,784/. He however declared his net salary from other sources as NIL. On the other hand, the aggrieved/complainant declared her educational qualification as 12th pass and further submitted that she was unemployed, staying at her paternal home since her separation. She further stated that her son was independent but the daughter was of marriageable age and B.Com pass and doing vocational course in dance and music. She declared her income as NIL.
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8. After taking into account all the facts and circumstances of the case, pleadings and documents relied upon by the parties including their respective income and expenditure affidavits and hearing the parties, the Ld. Trial Court directed respondent no. 1 to pay a sum of Rs. 15000/ towards the maintenance of aggrieved from the date of order i.e., from 01.06.2019. The Ld .Trial Court however rejected the claim of interim maintenance of the daughter of the aggrieved i.e., coappellant on the ground that she was wellqualified and also attained majority since long.
9. The above order has been challenged by both the parties vide separate appeals.
10. Summary of grounds of appeal of Respondent no. 1 (husband).
The first major grievance of respondent no. 1 is that already a final order was passed by ACJM, Gurgaon whereby the Hon'ble Court on an application U/s 125 CrPC in petition no. 279 of 1996 awarded maintenance of Rs 500/ each to the aggrieved and her then minor children and vide order dt. 16.04.1999 which was a final and permanent order of maintenance and not an interim maintenance order and that Ld. Trial Court completely overlooked the said order. It is further argued that the Ld. Trial Court has totally failed to appreciate the submissions made by the appellant, as the second petition U/s 125 CrPC, which was filed by the respondent before Family Court, Shahdara, Delhi in January, 2015 was also dismissed by the family court vide order dt. 22.09.2017 on the ground that second petition U/s 125 CrPC is not maintainable; that once first such application CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 6 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita has already been decided, fresh application can only be moved in case of change of circumstances in the first petition U/s 127 CrPC; It is further submitted by counsel that respondent no. 1 even continued to pay the maintenance U/s 24 of Hindu Marriage Act upto March 2015 even after dismissal of appeal for divorce (FAO No. 24 /1998) dt.10.10.2014.
11. The next ground of challenge raised by counsel for respondent no. 1 is that he has already been acquitted in FIR No. 912 dt. 15.08.1996 U/s 498 A/506 IPC vide judgment dt 07.08.2006 and therefore the allegations of the aggrieved have been proved to be false.
12. It is further submitted that the Ld. Trial Court has wrongly made an observation against the appellant that he had obtained huge loan just to defeat the claim of the aggrieved person, hence the impugned order is liable to be set aside. As per counsel the said huge loan was obtained for bulk payment of arrears of maintenance and for payment of different different advocate's fee and to afford other litigation expenses. He has further supported the judgment of the Trial Court declining any maintenance to the daughter of the aggrieved.
13. Summary of the grounds of appeal of the aggrieved and her daughter (appellant no. 2)in appeal no. 279/2019.
As per the aggrieved, the Ld. MM failed to appreciate that respondent was working as a Section Officer with NDMC and drawing a salary of 92,905/ and the fact that she was on the other hand unemployed and a mother of a daughter who is of marriageable age and therefore, the Ld. MM ought to have awarded a realistic sum which ought to have been CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 7 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita atleast Rs. 40,000/. As per counsel for the aggrieved, respondent no. 1 has no other liability except to maintain the complainant/aggrieved and their children. The second grievance of the complainant is that the maintenance ought to have been awarded from the date of the application and not from the date of order as has been done by the Ld. Trial Court. It is finally argued by counsel for the aggrieved that she lastly received a maintenance before the Hon'ble High Court for herself and her two children at the rate of 8,000/ per month U/s 24 Hindu Marriage Act till the disposal of FAO 24/1998 in the year 2014 and after that she has not been paid any maintenance.
14. Counsel for Coappellant i.e., daughter of the aggrieved has submitted that she may be major but still she is entitled to maintenance till she is married. As per counsel, the appellant no.2 has now married on 24.11.2022 and therefore she is entitled to interim maintenance from the date of filing the interim application for maintenance i.e.,17.08.2018 till 24.11.2022 i.e., date of her marriage.
15. I have heard both the parties and perused the record.
16. The marriage between the parties is not disputed. It is also not disputed that aggrieved and respondent no. 1 were residing together in the shared household. That two children out of which one is a daughter were born out of the wedlock is also not denied. Section 23 of Domestic Violence Act talks about interim relief. At this stage, only a prima facie view is required to be taken by the concerned Magistrate in respect to the existence of the domestic violence and allegations of aggrieved may be CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 8 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita taken at the face value without being influenced by denial of the husband, of course if there are cogent reasons or compelling circumstances not to believe the same.
17. The two important questions arising for consideration in the present case, first, whether maintenance can be claimed under DV Act by the wife despite the fact that she has been ordered grant of maintenance, or in fact, receiving maintenance under other statute i.e., section 125 CrPC or Hindu Marriage Act and the second question pertaining to the date from which the maintenance ought to be awarded i.e., from the date of application or date of order, have finally been settled by the Hon'ble Supreme Court in the case titled as Rajesh Vs. Neha (2020) SCC Online 903 and infact, the court also proceeded to issue guidelines to avoid any confusion. The final directions that are relevant to the decision of the present appeal are extracted below:
Directions on overlapping jurisdiction(Para 56) It is well settled that a wife can make a claim for maintenance under different statues. For instance, there is no bar to seek maintenance both under the D.V.Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 9 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or setoff of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding".
18. Pertinently, it is section 125 CrPC which says that wife is not capable of maintaining herself, then only husband is liable to pay maintenance. However, Section 20 of DV act does not provide for any such prohibition. Hon'ble Delhi High Court in Kanupriya Sharma Vs. State (2019) 261 DLT 349 has taken a similar view.
Hence, the above authoritative pronouncements would make it clear that wife has been given a right to claim for maintenance under different statues by moving successive application but she has been put under legal obligation to disclose the relief granted under the previous proceedings and the court is bound to take into account the maintenance already awarded and may consider adjustment or set of. Hence, the contention of counsel for respondent no. 1 that wife is not entitled to seek maintenance under DV Act after she has been granted maintenance U/s 125 CrPC is not maintainable.
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19. Now moving to the next issue, vide the impugned order Ld. Trial Court directed the respondent to pay interim maintenance in the sum of Rs. 15,000/ from the "date of order", however, no reason has been given by the Trial Court as to why the maintenance was not granted from the date of application. Again the directions/guidelines given in the case titled as Rajesh Vs. Neha (2020) SCC Online 903 (para 60)are relevant.
(d) Date from which maintenance to be awarded.
We make it clear that maintenance in all cases will be awarded from the date of filling the application for maintenance, as held in Part B IV above.
In the above order, the Ld. Supreme Court observed that the view that maintenance ought to be granted from the date when application was based on the reasoning that primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. It was also well observed if maintenance is not paid from the date of the application, the parties seeking maintenance would be deprived of sustenance owing to the time taken for the disposal of the application. Even if the Ld. Magistrate deemed it fit not to grant the maintenance from the date of application, a speaking order ought to have been passed for the same. No doubt, wife may have been receiving some sustenance by virtue of order U/s 125 CrPC or some interim maintenance under Hindu Marriage Act but it may be observed the concept of reliefs envisaged under DV is premised upon culpability i.e.,wrongful act of a person against the aggrieved in causing domestic violence (and definition of domestic violence is wide enough to include economic abuse). In the present case the application for grant of interim maintenance was moved by the aggrieved along with her daughter on 17.08.2018 but vide the impugned order the Ld. CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 11 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita Magistrate granted maintenance from the date of order i.e., 01.06.2019 only which needs modification.
20. Moving further, respondent no. 1 has tried to rely upon the order of acquittal in FIR bearing no. 912/1996 which was registered U/s 498 A/406 IPC in PS Sadar, Gurgaon and submitted that since respondent no. 1 stands acquitted on the allegations etc therefore he has been given a clean chit and further the said acquittal clearly means that the allegations levelled by the aggrieved have been found to be false. This court is not in agreement with this contention of the counsel for the respondent no. 1. The standard of proof in a criminal case and proceedings under DV Act , which have been held to be civil in nature, is entirely different. Even otherwise the definition and scope of domestic violence provided in section 3 of PWDV Act, 2005 is much wider and therefore the acquittal of the accused in the above case cannot be a defence to avoid payment of maintenance.
21. The daughter of the aggrieved and respondent namely Sujata is also a coappellant along with her mother. As per counsel, the appellant no.2 has married only on 24.11.2022 and therefore she is entitled to interim maintenance from the date of filing the interim application for maintenance i.e.,17.08.2018 till 24.11.2022 i.e., date of her marriage. Before appreciating this contention of Ld. Counsel for the appellant, it would be relevant to produce the reasoning given by the Ld. Trial Court to decline maintenance to the daughter.
"As far as the children of the aggrieved are concerned, both of them are major and attained majority long back. Her daughter is well qualified and completed her B.Com in the year 2014 itself. According to the CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 12 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita aggrieved, she is not married till date. Though aggrieved claims that her daughter is not working anywhere, no cogent reason has been given for the same. The application for interim maintenance which is being decided by the present order, was filed long after she attained majority. Hence, I do not consider it proper to fix any maintenance for the major well qualified daughter ".
22. This court is of the opinion that the definition of the "aggrieved person" given in PWDV Act 2005 is wide enough and covers "any women" 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. A plain and simple reading of a definition of aggrieved person clearly suggests that an unmarried daughter can be an "aggrieved" against her father provided the other parameters of DV Act are fulfilled. There are clear averments in the DIR that the respondent turned out the applicant and her children from the matrimonial home/shared household on 26.01.1996 without any reasonable cause and excuse. Further, there are also averments that the aggrieved and her children have not been provided with required maintenance. Hence, prima facie the ingredients required by the daughter to take a aid of DV Act are fulfilled. At this stage, only prima facie view is required to be made by the concerned Magistrate in respect of existence of domestic violence. At this stage, allegations of aggrieved wife have to be taken at its face value without being influenced by denial of the husband, ofcourse unless and until there are cogent reasons not to believe her. As already stated, the aggrieved and her daughter Sujata (coappellant) have made a prima facie case in their favour therefore there was no reason for the Ld. Magistrate not to grant maintenance to the daughter. The argument of counsel for the respondent no. 1 that as per CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 13 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita PWDV Act, 2005 child only below age of 18 years is entitled for getting maintenance is not applicable to the facts of the present case since co appellant Sujata is a "female" and as already discussed falls in the definition of aggrieved therefore she has an independent right to invoke provisions of Domestic Violence Act against her father. Even otherwise under Hindu Adoption and Maintenance Act, 1956 an unmarried daughter has been given right to claim maintenance and her such right has been recognized by Section 20 (3) of the above act irrespective of her age. Be that as it may be, The entire concept of relief under DV Act is premised upon culpabilities i.e., wrongful act of the persons.
23. Now coming to the quantum of maintenance of aggrieved, in his income affidavit filed by the respondent no. 1, he declared his educational/professional qualification as MA from Delhi University and his occupation to be working as a Government employee with designation of Section Officer in New Delhi Municipal Council and having a gross salary of Rs. 90,784/. He however declared his net salary from other sources as NIL. On the other hand, the aggrieved/complainant declared her educational qualification as 12th pass and further submitted that she was unemployed, staying at her paternal home since her separation. She further stated that her son was independent but the daughter was of marriageable age and B.Com pass and doing vocational course in dance and music. She declared her income as NIL.
24. Although, there are pleadings to the effect in the reply of the respondent/husband that the wife is well qualified and working as a teacher in Amity School but except this bare statement there is nothing on record to CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 14 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita show that she is working as a teacher. It has been once again asserted by the aggrieved in the present appeal that she is unemployed and mother of a daughter. As far as the question of qualification is concerned, the same is not a bar to claim maintenance even the courts have held that if the wife is earning some income, it cannot operate as a bar from being awarded maintenance by the husband. Nothing has come on record that the respondent/husband has any other legal liability of maintenance except her estranged wife and daughter who may even be major. Although, an attempt has been made by counsel for the accused to show that there is an orphan girl which is real niece of the respondent who is in custody of present respondent and his responsibility but again it is matter to be determined during trial and even otherwise it cannot be termed as a legal responsibility. The son of the parties is admittedly major and self dependent. A meager amount of Rs. 500/ each awarded by the ACGM, Gurgaon on an application U/s 125 CrPC vide order dt. 16.04.1999 to the aggrieved and her children is clearly not sufficient in present times and also already discussed the parameters of DV Act are different from that of Section 125 CrPC. Moreover, the PWDV Act only came into existence in the year 2005 i.e., after the above order was passed. As per the income/expenditure affidavit filed by the husband/respondent no. 1, he is working as a Section Officer at NDMC and drawing a salary of around 92,000/, although, he has tried to downplay the said income by stating that he has taken various loans and is required to pay installments and his earning in hand is only Rs. 17,349/. The observations of Ld. Trial Court are relevant on this issue.
"Further, even though some of the deductions from the salary of respondent like towards income tax, GPF and life insurance are considered for CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 15 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita a while to reflect on his actual income, it is pertinent to mention that various deductions towards loan etc. are apparently made with a view to defeat the claim of the aggrieved. No prudent man is expected to take such huge loans and later to show helplessness is paying adequate maintenance to his wife.
Observations have been made in this regard by Hon'ble High Court of Delhi, New Delhi in its order dt. 11.02.2021".
25. Hence, merely because the husband may be required to pay installments of some loan will not diminish his responsibility to maintain his wife or children. If such submission is accepted then the husband may start availing loan to avoid payment of maintenance. Further, as already discussed the daughter of aggrieved i.e., appellant no. 2 is also entitled to claim maintenance from her father till the date of marriage which is 24.11.2022. Admittedly, respondent no. 1 is a Section Officer in NDMC and as per the statement of income filed by him before the Trial Court, he has declared his income as Rs. 90784/ therefore Considering the status of the parties, reasonable needs of aggrieved and the dependent children , a reasonable maintenance ought to be awarded in the present case.
In view of the aforesaid discussion and also considering all the facts and circumstances of the present case, respondent no. 1 is directed to pay a sum of Rs. 20,000/ as interim maintenance to his wife i.e., aggrieved/complainant from the date of application seeking such maintenance i.e., 17.08.2018 and a sum of Rs. 15,000/ to his daughter CA No. 279 of 2019 Sunita Vs. Vijay Pal@Mohd. Sabir Page 16 of 17 CA No. 251of 2019 Vijay Pal@Mohd. Sabir Vs. Sunita Sujata i.e., appellant no. 2 in appeal no. 279/2019 from the date of application i.e.,17.08.2018 till her marriage i.e., 24.11.2022. It is however made clear that the sum of maintenance already paid by the husband u/s 125 CrPC, section 24 of Hindu Marriage Act or even any other provision of law shall stand deducted/set off.
26. In view of the above reasons, the appeal filed by the respondent no. 1 is dismissed altogether and appeal filed by appellant no.1/aggrieved and her daughter stands modified to the extent indicated above.
27. TCR be sent back to Ld. Trial Court alongwith copy of this judgment.
28. Appeal files be consigned to Record Room after due compliance as per rules.
Pronounced in the open (CHANDER MOHAN)
Court on 27th February, 2023 Additional Sessions Judge07,
South, Saket Courts, New Delhi
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