Delhi District Court
Dhirendra Kumar vs . Swati Saista on 27 February, 2020
Dhirendra Kumar Vs. Swati Saista
Case Registration No. 281/2019
IN THE COURT OF SONU AGNIHOTRI
ADDL. SESSIONS JUDGE02:
DWARKA COURTS: NEW DELHI
Criminal Appeal No.: 38/19
Case Registration No. 281/2019
CNR No. DLSW010078352019
DHIRENDRA KUMAR
S/o Late Sh. Nuju Rai
R/o Flat No. 112, Golden Height,
Sector12, Pocket8,
Dwarka, New Delhi110 078.
.... Appellant
VERSUS
SWATI SAISTA
D/o Sitaram Singh
R/o B503, Meghdoot Apartment,
Plot No. 19, Dwarka Sector7,
Delhi Cantonment South West Delhi,
Delhi110 075. .... Respondent
Date of institution : 02.07.2019
Date of reserving judgment : 13.12.2019
Date of pronouncement : 27.02.2020
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Dhirendra Kumar Vs. Swati Saista
Case Registration No. 281/2019
JUDGMENT
1. This is an appeal preferred by Dhirendra Kumar, appellant Under Section 29 of Protection of Women From Domestic Violence Act, 2005 for setting aside impugned order dated 25.05.2019 passed by Ms. Neha, Ld. MM, (Mahila Court), South West in CC No. 1582/19, PS Dwarka South whereby Ld. Trial Court directed appellant to pay sum of Rs. 35,000/ as adinterim maintenance to respondent.
2. The brief facts, relevant for the purpose of disposal of present appeal as per appeal are that complainant/respondent filed complaint case U/sec 12 of D. V. Act before Ld. MM Mahila Court. It is stated that the said complaint was filed jointly by complainant/respondent with her son but at the time of filing complaint, respondent threw her son out of her house and deserted him at midnight when appellant was on duty.
3. It is stated that appellant filed written statement before Ld. MM Court alongwith documents wherein he stated true facts.
4. It is stated that appellant is residing in rented accommodation alongwith his son since 02.01.2019.
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5. It is stated that appellant submitted his salary slip before lower court in which monthly income is shown to be Rs. 1,48,318/ (approximately).
6. It is stated that respondent threw out appellant and child from house owned by appellant. It is stated that respondent is residing in the said flat alongwith her family members. It is stated that respondent is B Tech and approaching for jobs with resumes representing her status as unmarried.
7. It is stated that appellant even after staying away from respondent is sending lump sum amount of Rs. 20,000/ (approximately) in her account.
8. Following grounds have been taken by appellant for challenging impugned order dated 25.05.2019.
a) Because interim order dated 25.05.2019 is wrong, despotic and illegal.
b) Because impugned order of Ld. MM is contrary to well settled principles of maintenance law and law laid down by Hon'ble Supreme Court of India in various cases.
c) Because Ld. Trial Court failed to consider material lapse in present case.
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d) Because Ld. Trial Court failed to appreciate that child has been deserted by respondent and is presently in appellant's custody who is taking care of his child.
e) Because Ld. Trail Court failed to appreciate that appellant was thrown out of his own house and is staying in rented accommodation with his child.
f) Because house of appellant is in custody of respondent and her family but still appellant is paying all maintenance and other related charges of his property.
g) Because since house of appellant is in custody of respondent and her family and they are intentionally not paying dues of society as well as electricity charges so that complaint can be made before Registrar of Society for cancellation of flat but appellant is paying all the said charges to avoid the same.
h) Because appellant and his son are staying in rented accommodation for which appellant is paying Rs. 26,000/ as monthly rent from period 02.01.2019 till now.
i) Because respondent has been representing herself as unmarried in her resumes which she is sending for various purposes which proves fraudulent intention of respondent.
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j) Because appellant is having monthly income of Rs. 1,48,318/ out of which, he is also having burden of rent payment and is also shouldering responsibility towards his family.
k) Because Ld. MM directed to pay adinterim maintenance without submitting detailed income affidavit as well as documents which is illegal as per directions passed by Hon'ble High Court of Delhi.
l) Because appellant's correspondence is in custody of respondent and she is destroying valuable documents of appellant which comes on her address.
9. It is prayed to set aside impugned order dated 25.05.2019 passed by Ld. Trial Court.
10. I have heard arguments addressed by respective counsels and perused the record including TCR and written submissions and reply to written submissions filed by parties.
11. Alongwith written submissions filed by respondent, respondent has annexed three annexures R1 to R3 which are stated to have been obtained after filing of present appeal. Ld. Trial Court has not based impugned order on any document, so annexures filed by respondent cannot be taken into account. Even had application for interim maintenance being decided on merits, it was proper to Page no5 of 8 Dhirendra Kumar Vs. Swati Saista Case Registration No. 281/2019 bring new documents if any in notice of Ld. Trial Court for modifying order passed on the basis of new documents and without Ld. Trial Court expressing any opinion on annexures R1 to R3, the new documents cannot be looked into directly in appeal.
12. Respondent in her written submissions has stated gross salary of appellant for February, 2019 to be Rs. 9,11,962.16/ and net salary to be Rs. 5,51,238.16/ but in view of the fact that Ld. Trial Court does not appear to have taken any note of salary of appellant in impugned order, so any observation of mine in appeal would not be proper as giving finding on some document regarding which Ld. Trial Court has not given any opinion could not be decided in appeal.
13. It is stated by respondent in written submissions that appellant entered into rental agreement only to give colour to his version and domestic violence case as not only appellant has been resisting entry of respondent into rented shared household but also shamelessly filed criminal case against respondent alleging trespassing . It is submitted that rented accommodation has been taken by appellant for averting any major tragedy with child of parties as child of parties has already met with major accident while commuting to school in unauthorized vehicle arranged by appellant.
Page no6 of 8 Dhirendra Kumar Vs. Swati Saista Case Registration No. 281/2019 It is submitted that rented accommodation is near school of child of parties. Mentioning of all these facts by respondent are not relevant in deciding an appeal against interim maintenance order which interim order does not appear to have been based on any facts.
14. Thereafter, respondent has mentioned law relating to Section 125 Cr. P. C. and Section 7 of Family Courts Act which as such is not relevant to facts of present case. It has been prayed by respondent to dismiss present appeal filed by appellant.
15. Perusal of trial court record shows that Ld. Trial Court passed impugned order dated 25.05.2019 without taking into account income affidavit and other relevant documents of parties. Ld. Trial Court in impugned order merely stated that till interim application is decided, respondent no. 1 (appellant herein) is directed to pay a sum of Rs. 35,000/ as adinterim maintenance to the complainant (respondent herein). How, Ld. Trial Court arrived at figure of Rs. 35,000/ is not clear from the order. What factors weighed in mind of Ld. Trial Court for granting adinterim maintenance are not reflected in impugned order. What was basis of deciding adinterim maintenance has not been referred to by Ld. Trial Court in impugned order. Neither income of appellant has been mentioned nor any requirement shown by respondent has been discussed in the Page no7 of 8 Dhirendra Kumar Vs. Swati Saista Case Registration No. 281/2019 impugned order by Ld. Trial Court. What are the liabilities of either of the parties, what each party is earning or not earning despite having potential of the same has also not been discussed by Ld. Trial Court in impugned order. Impugned order appears to have been passed by Ld. Trial Court as per its own wishes which cannot be sustained. It is trite to state that for Judging an order on merits in appeal, reasoning is always a cherished virtue which is unfortunately missing in impugned order. Impugned order appears to have been passed on basis of conjectures and surmises and cannot be sustained and hence set aside. Appeal filed by appellant is allowed.
16. Ld. Trial Court is directed to pass reasoned order after taking into account relevant documents as filed by respective parties with regard to interim maintenance application if filed by respondent.
17. Appeal file be consigned to record room. Trial court record be sent back along with the copy of this judgment. Dictated and Announced in the open court on 27.02.2020 (Sonu Agnihotri) Additional Sessions Judge02, (South West) Dwarka Courts, New Delhi Page no8 of 8