Delhi District Court
Manish Garg vs Swati Aggarwal on 30 July, 2024
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-015345-2023
Criminal Appeal No. 274/2023
MANISH GARG,
S/o. Late Sh. Ramesh Kishan Garg,
R/o. G-121, Ground Floor, Gali No. 24,
Raja Puri, Uttam Nagar, Delhi. ... APPELLANT
VERSUS
SWATI AGGARWAL,
D/o. Late Sh. Vipin Aggarwal,
R/o. Plot No. 10, C-2, Friends Apartment,
Burari, Delhi-110081. ... RESPONDENT
Date of Institution : 27.10.2023
Date when judgment was reserved : 23.07.2024
Date when judgment is pronounced : 30.07.2024
CNR No.: DLCT01-016047-2023
Criminal Appeal No. 281/2023
SWATI AGGARWAL,
D/o. Late Sh. Vipin Aggarwal,
R/o. Plot No. 10, C-2, Friends Apartment,
Burari, Delhi-110081. ... APPELLANT
VERSUS
MANISH GARG,
S/o. Late Sh. Ramesh Kishan Garg,
R/o. G-121, Ground Floor, Flat No. 102,
Gali No. 24, Raja Puri, Uttam Nagar,
New Delhi-110059.
Also at; B-50, Subhash Park,
Uttam Nagar, Delhi-110059. ... RESPONDENT
Date of Institution : 07.11.2023
Date when judgment was reserved : 23.07.2024
Date when judgment is pronounced : 30.07.2024
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal
Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 1 of 30
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.07.30
16:19:58 +0530
JUDGMENT
1. The present judgment shall determine the aforenoted appeals bearing; Crl. Appeal No. 274/2023 and Crl. Appeal No. 281/2023. Pertinent to outrightly observe that Crl. Appeal No. 274/2023 has been preferred by Mr. Manish Garg (hereinafter referred to as the 'husband'), whereas Crl. Appeal No. 281/2023 has been preferred by Ms. Swati Aggarwal (hereinafter referred to as the 'wife'). Notably, both the said appeals impugn/challenge a common order dated 16.10.2023 (hereinafter referred to as the 'impugned order'), passed by Ld. MM-03, Central, (Mahila Court), Central, Tis Hazari Courts, Delhi ( hereafter referred to as the 'Ld. Trial Court'/Ld. MM'), in Ct. Case No. 1994/2022, titled as; 'Swati Aggarwal v. Manish Garg', PS Burari, determining the application, filed on behalf/by the wife, in terms of the provisions of Section 23 read with Section 26 of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter referred to as the 'DV Act'). Apposite to further note that by virtue of the impugned order, the Ld. Trial Court, awarded interim maintenance to the tune of Rs. 18,000/- (Rupees Eighteen Thousand only) per month, inclusive of miscellaneous expenses and rent, to be paid by the husband to the wife from the date of filing of the application/petition under Section 12 of the DV Act before the Ld. Trial Court, till she/the wife is legally entitled to receive the same. Needless to mention that by virtue to Crl. Appeal No. 274/2023, the husband has sought, setting aside/quashing of the impugned order/order, granting interim maintenance in favour of the wife. In contrast, by means of Crl. Appeal No. 281/2023, the wife has sought enhancement of the quantum of interim maintenance, awarded under the impugned order, to a tune of Rs. 70,000/- (Rupees Seventy Thousand only).
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal
Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 2 of 30
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.07.30
16:20:04 +0530
2. Succinctly, the facts leading to the filing of the instant appeals are that the marriage between the husband and the wife was solemnized on 12.05.2022, as per Hindu rites, ceremonies and customs. As per the wife, the said marriage was solemnized with great pomp and show, however, immediately prior to the date of said marriage, when everything had been arranged for and the invitations were already issued to the relatives and guests, the husband and his family members are asserted to have demanded cash of Rs. 10,00,000/- (Rupees Ten Lakhs only) as well as a car from the wife and her family members. When the mother and grandfather of the wife are asserted to have expressed their inability to meet such exorbitant demand, the husband and his family members agreed to reduce the said demand amount to Rs. 8,00,000/- (Rupees Eight Lakhs only) in cash, which is stated to have been duly paid by wife's family members to the husband's family. Further, as per the wife, within a short time span of marriage, the husband and his family members commenced demanding cash and other articles from the wife and her family members, under threat of dissolution of said marriage. The said demands are proclaimed to have been persistently met by the wife's family members, however, the husband and his family members persevered in their unjust requests. The wife has further alleged that the husband, committed sexual abuse on her and removed all her ornaments as well as stridhan articles from her possession on the pretext of keeping the same in safe custody, besides the husband and his family members repeatedly insulted the wife before visitors as well as guest on the ground that they were cheated in the bargain of marriage. As per the wife, in the evening of 26.05.2022, when she had returned to her room after completion of her daily Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 3 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:09 +0530 chores, the husband rebuked her, while objecting as to her resting, while the husband's mother was engaged in work in the kitchen. Soon thereafter, the husband is stated to have beaten the wife, resulting in the wife/her sustaining injuries. Undeterred, the husband and his family members are alleged to have insistently raised one or the other demands from the wife and her family members, including a demand of FD and LIC. However, when the wife denied of being possessed of any such assets/belongings, the wife was beaten up by her brother-in-law. It was concomitantly affirmed by the wife that she was constantly subjected to torture, humiliation, and assault as long as she resided with the husband and his family members and was subsequently, forced out of her matrimonial home on 16.06.2022. Under such facts and circumstances, on 24.09.2022, the wife moved an application under Section 12 DV Act for seeking reliefs, inter alia envisaged under Sections 17, 18, 19, 20 and 22 of DV Act. Correspondingly, the wife also moved an application under Section 23 read with Section 26 of DV Act, seeking interim maintenance, along with her application/petition under Section 12 DV Act. Notably, during the course of proceedings before Ld. Trial Court, the husband and wife filed their respective affidavits of income, besides the husband also filed his reply to the wife's said applications. Upon completion of pleadings, arguments were addressed by/on behalf of the husband and wife before the Ld. Trial Court on the wife's application under Sec. 23/26 of DV Act, wherein, the husband vehemently opposed the prayer sought for by the wife as well as denied the allegations levelled by the wife against him as well as his family members. As aforenoted, upon conclusion of the said arguments, the Ld. Trial Court, vide impugned order, allowed the application Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 4 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:14 +0530 of the wife, seeking interim maintenance, in the terms as specified hereinunder.
3. Learned Counsel for the husband submitted that impugned order was passed by the Ld. Trial Court, oblivious of correct facts and the circumstances of the present case as well as, unmindful of the settled law governing the field of grant of interim maintenance. In this regard, the Ld. Counsel outrightly contended that the Ld. Trial Court, while passing the impugned order, failed to consider that the wife is well educated and competent to incur expenses towards her maintenance, despite which, she has opted to agitate her claim for maintenance solely to harass the husband as well as unjustly extract monetary claim(s) from him. As per the Ld. Counsel, the wife is qualified, able as well as competent to gain employment, as borne out from the records of the present case. However, despite the same, it was contended that she has opted to deliberately sit idle, solely to encumber the husband with additional financial liability. On the contrary, as per the Ld. Counsel, the husband works as a kabadi/scrap dealer and is devoid of means/stable income to meet the extortionate demands of the wife. It was further submitted that the wife has, herself, proclaimed in her income affidavit that she possesses a degree in M. Com., as well as also asserted that she is a social worker, working with NGO for noble cause(s). Further, as per the wife's biodata, she had pursued a training programme in software engineering (O' Level), Tally and holds teaching experience as home tutor, etc. Concomitantly, Ld. Counsel submitted that from a scrupulous analysis of documents filed by the wife before the Ld. Trial Court, it would be manifest that the wife is not only working for the NGO 'Helping Hands for Needy', rather, also running the same and earning a steady Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 5 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:20 +0530 income in the said process. As per the Ld. Counsel, the recurring and regular credit/deposit entries in the wife's two bank accounts would further demonstrate that she is in possession of a stable source of income as well as maintaining huge balance in her said bank accounts, despite which, Ld. Counsel submitted that the wife is deliberately withholding her actual sources of income, with the sole intention to encumber the husband with an supplementary pecuniary obligation. Ld. Counsel further reiterated that the wife, despite being extremely well qualified, has failed to demonstrate any plausible reasons for not working and saddling the husband with her liability, despite the fact that the husband is only eighth pass, having an average income of about Rs. 41,500/- (Rupees Forty One Thousand Five Hundred only) per month, barely enough to meet the sustenance of the husband as well as his family members, including aged parent(s).
4. Learned Counsel for the husband further submitted that the Ld. Trial Court committed an error by ignoring and not making deductions of Rs. 27,573/- (Rupees Twenty Seven Thousand Five Hundred Seventy Three only) per month, being the amount/money paid by the husband recurrently towards the instalments of housing loan. In this regard, Ld. Counsel fervently argued that the husband had incurred a housing loan, way prior to his marriage with the wife and had ever since, been, regularly depositing/paying monthly instalments, which automatically get debited from his bank account. As per the Ld. Counsel, the husband, along with his income affidavit, had filed his bank statement reflecting the monthly debit of the said instalment amount of Rs. 27,573/- (Rupees Twenty Seven Thousand Five Hundred Seventy Three only), which was, however, not considered/deducted by the Ld. Trial Court from his/husband's Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 6 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:25 +0530 income, while determining his sum in hand, in violation of the decision of the Hon'ble Supreme Court in Bhushan Kumar Meen v. Mansi Meen, (2010) 15 SCC 372. In this regard, Ld. Counsel zealously argued that under the said decision, the Hon'ble Supreme Court had explicitly observed that the deduction towards the housing loan has to be taken into consideration for arriving at the sum in hand, for calculating the amount of maintenance for the wife. However, as per the Ld. Counsel, the said fact was not considered by the Ld. Trial Court, while passing the impugned order. On the contrary, as per the Ld. Counsel, the Ld. Trial Court erroneously placed reliance upon the decision of Hon'ble High Court of Delhi in Nitin Sharma v. Sunita Sharma, 2021 III AD (Delhi) 210, while passing the impugned order and rejecting the contention of the husband that the loan amount has to be deducted while determining the husband's income. Further, as per the Ld. Counsel, the said decision is not applicable to the facts of the present case as the same does not pertain to housing loan, besides, the situation envisaged therein, pertains to a case where a person tries to avoid his liability by taking loans and paying the EMI thereupon, whereby, deliberately manipulating his income in hand. However, as per the Ld. Counsel, the facts of the present case are in gross variance, as the loan in the present case was not only obtained by the husband way prior to his marriage with the wife, rather, with a sole intention to ensure that a suitable accommodation is available for the residence of the husband and wife, post their matrimony. Accordingly, Ld. Counsel submitted that the impugned order is replete with material inaccuracies and infirmities, besides passed in gross violation of settled judicial precedents, entitling the same to be set aside on this sole ground. It was further contended that Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 7 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:31 +0530 despite the husband filing his income tax returns for the tears 2021-22 and 2022-23, wherein his monthly source of income is eventually ascertainable as Rs. 40,000/- (Rupees Forty Thousand only), it was not proper for the Ld. trial Court to assume his income as Rs. 50,000/- (Rupees Fifty Thousand only), while determining the quantum of interim maintenance. Even otherwise, as per the Ld. Counsel reiterated that the Ld. Trial Court, while passing the impugned order failed to consider that the husband's mother was dependent on him and that the husband was incurring monthly expenses of around Rs. 6,000/- (Rupees Six Thousand only) towards her medicines and look after. Accordingly, Ld. Counsel prayed that the husband's appeal may be allowed and the impugned order, awarding interim maintenance in favour of the wife be set aside. In support of the said contentions, reliance was placed upon the decisions in; Rajnesh v. Neha, (2021) 2 SCC 324; Chetram Mali v. Karishma Saini, 2023 SCC OnLine Del 7318; Dr. Kulbhushan Kumar v. Smt. Raj Kumari & Anr., (1970) 3 SCC 129; M. Ravishankar v. R. Pushpa, 1997 (4) Kar. LJ 543 (Hon'ble Karnataka High Court); Kalyan Kumar Kundu v. Smt. Simita Kundu, 2016 SCC OnLine Cal 10540; Sarita Bakshi v. State and Anr., Crl. Rev. P. 792/2018 & Crl. M.A. 14266/2021, dated 03.06.2022 (DHC); and Babita Bisht v. Dharmender Singh Bisht, 2019 SCC Online Del. 8775.
5. Per contra, Ld. Counsel for the wife submitted that impugned order suffers with inherent illegality and impropriety, being passed by the Ld. Trial Court unmindful of the fact that the husband is spending handsomely on his upkeep and maintenance as well as, regularly expending on luxurious items of life. As per the Ld. Counsel, the husband is running a lucrative business in Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 8 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:35 +0530 used items and kabaddi goods, while maintaining a large godown and factory for that purpose, as well as earning anything between Rs. 1,50,000/- to Rs. 2,00,000/-, monthly from this source. Apart from this, as per the Ld. Counsel, the husband is also in receipt of income from rent and other investments, shares, etc., having monthly income for more than Rs. 50,000/- from rentals and returns from immovable properties, handing either in his own name or that on his mother and younger brother. On the contrary, the wife is a housewife, having no source of income from any corner and dependent upon her brother and other family members, even for her daily sustenance and need. Further, as per the Ld. Counsel, the wife is suffering with piles problem, tooth diseases, skin allergies, headache, depression, etc., encumbered with monthly expenses for around Rs. 60,000/- to Rs. 70,000/-. However, despite the same, Ld. Counsel contended, the Ld. Trial Court has awarded the maintenance amount on a very lower side, gravely prejudicing the wife. Ld. Counsel further submitted that the impugned order is replete with conjunctures and surmises as the Ld. Trial Court has failed to consider proper income of the husband, failing to consider not only the husband's actual income, rather, also his potential capacity to earn. Further, as per the Ld. Counsel, the income affidavit and the bank statements, placed on record by the husband have not been properly appreciated by the Ld. Trial Court while reaching a conclusion as to Rs. 40,000/- as monthly income of the husband. In this regard, Ld. Counsel, while referring to the bank statements filed by the husband reiterated that the same would demonstrate that huge sums of money were transacted therefrom, which fact has not been considered by the Ld. Trial Court. Even otherwise, Ld. Counsel submitted that the wife is attached with the NGO for a Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 9 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.07.30 16:20:40 +0530 noble cause, though, searching for employment in the meanwhile. However, it was contended that at present, wife is not seized of any regular source of income. In this regard, Ld. Counsel, while referring to the decisions in Jaspreet Singh v. Swaneet Kukreja 2022 SCC OnLine Del 636; and Dr. Arvind Kishore v. Neha Mathur & Anr., 2022 SCC OnLine Raj 1510, contended that even presuming that the wife was earning, cannot be a sole ground for denying her claim for maintenance.
6. Ld. Counsel for the wife further submitted that the husband deliberately failed to disclose under his income affidavit that the 'so called' home loan was secured by the husband along with co-borrowers, namely, Garg Trading Company, Harish Garg and Shashi Bala Garg, making the said co-borrowers equally liable to repay the said amount. Accordingly, the husband, as per the Ld. Counsel, is precluded from seeking benefit of such loan. Even otherwise, as per the Ld. Counsel, the present situation/facts and circumstances of the present case are covered with the decision in Nitin Sharma v. Sunita Sharma (Supra.) wherein the Hon'ble High Court of Delhi, unambiguously observed that while computing the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF, etc., alone are permitted and no deductions towards house rent, electricity charges, repayment of loans, LIC, etc. are permitted. Ld. Counsel, accordingly, reiterated that the impugned order was passed by the Ld. Trial Court without assigning any reasons for not granting the maintenance as per law as well as being unmindful of the basic requirements/necessities of the wife, entitling enhancement therein to a tune of Rs. 70,000/- (Rupees Seventy Thousand only). Consequently, Ld. Counsel Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 10 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:20:50 +0530 prayed that the wife's appeal may be allowed, and the interim maintenance awarded in favour of the wife, be enhanced to a tune of Rs. 70,000/- (Rupees Seventy Thousand only). In support of the said contentions, reliance was placed upon the decisions in; Rishi Kumar v. Suman, 2008 SCC OnLine Del 38; Mr. Rama Shanker v. Smt. Renu, 2011 SCC OnLine Del 5329; Jyotsna v. Gaurav Sofat, 2010 SCC OnLine Del 3899; and Charurbhuj v. Sita Bai, (2008) 2 SCC 316.
7. The arguments of Ld. Counsel for the husband as well as that of Ld. Counsel for the wife have been heard and the record(s), including the Trial Court Record(s), written arguments of/filed on behalf of the husband as well as that of/filed on behalf of wife and case laws placed on record, thoroughly perused.
8. Before proceeding further with the determination of the rival contentions of the parties, this Court deems it pertinent to outrightly reproduce the relevant legal provisions as under;
"2. Definitions-In this Act, unless the context otherwise requires,-
(a) "aggrieved person" means 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;
*** *** ***
(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
*** *** ***
20. Monetary reliefs-(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;
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal
Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 11 of 30
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.07.30
16:20:55 +0530
(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, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(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...
*** *** ***
23. Power to grant interim and ex parte orders-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent."
(Emphasis supplied)
9. At the outset, it is observed that the objective 1 behind the enactment of DV Act is to accord statutory protection to victims of violence in domestic sector, who had no proprietary rights. The said enactment provides for security and armour to a 'victim', inter alia by permitting issuance of protection orders that can prohibit the abuser from contacting or approaching the victim, as well as guarantees, endowment of financial support and victim's access to shared property. In fact, the superior courts have persistently avowed2 that the inherent aspiration for Digitally signed 1 Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC OnLine Bom 412. by ABHISHEK ABHISHEK GOYAL 2 Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 2895. GOYAL Date:
2024.07.30 16:21:02 +0530 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 12 of 30 bringing forth the said enactment is to secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship, "to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorce and maintenance etc." Reference in this regard is further made to the decision of the Hon'ble Supreme Court in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, wherein the Hon'ble Court, noted the objective behind the enactment of DV Act in the following terms;
"15. The DV Act has been enacted to provide a remedy in civil law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.
16. "Domestic violence" is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord, 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. The UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498-A IPC. The civil law, it was noticed, did not address this phenomenon in its entirety. Consequently, Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act."
(Emphasis supplied) Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal 16:21:07 +0530 Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 13 of 30
10. Strikingly, one of the remarkable features of the DV Act/provisions under DV Act is incorporated under Section 23 thereof, envisioning interim relief(s), inter alia, in the form of interim maintenance to be paid by the 'respondent' in favour of an 'aggrieved person', till the final adjudication on relief(s) sought for, which in the opinion of the magistrate is deemed as 'just and proper'. Quite evidently, the reasoning behind such an interim grant/order is3, "not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support." Reference, in this regard is further made to the decision in X v. Y, 2023 SCC OnLine Del 7925, wherein the Hon'ble High Court of Delhi, while enunciating the rationale behind the incorporation of the provisions under Section 23 DV Act, remarked as under;
"28. ... (iii) ...Under the DV Act, 2005, the provision for interim monetary relief was incorporated to provide the wife with immediate succour. The monetary relief as provided under Section 20 of the DV Act, 2005 is far more expansive than the right of interim maintenance recognized under Section 125 of Cr. P.C., 1973. The relief is not limited to maintenance but also included expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence inter alia loss of earnings, medical expenses, the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person, in addition to 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 Cr. P.C., 1973 or any other law for the time being in force..."
(Emphasis supplied)
11. Markedly, it is seen from above that the provisions under Section 23 of the DV Act are beneficial/propitious in Digitally signed 3 ABHISHEK by ABHISHEK Chaturbhuj v. Sita Bai, (2008) 2 SCC 316. GOYAL GOYAL Date: 2024.07.30 16:21:11 +0530 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 14 of 30 nature, guaranteeing that a dependent spouse is not reduced to a state of deprivation or impoverishment on account of the failure of the marriage. Nonetheless, the faculty envisioned under Section 23 DV Act, demand a cautionary exercise, ensuring establishment of an equipoise between the conflicting interests of the spouses. In fact, it is settled law4 that the grant of maintenance must ensure that the amount so awarded to a spouse is not so excessive, so that it becomes punitive and oppressive for the respondent, nor should such an amount be so paltry, so as to pushes a spouse to a state of penury. Here, it is further apposite to note that the determination of the quantum of interim maintenance, pending final adjudication of the conflicting interests, entails formation of only a prima facie view of the matter, and serious disputed questions of facts, demanding proof by adducing evidence, cannot be considered at such a stage. Reference in this regard, is made to the decision of the Hon'ble High Court in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816, wherein the Hon'ble Court in this regard unambiguously observed as under;
"21. An application under Section 23(1) of the D.V. Act is an application for fixing interim maintenance. Interim maintenance is fixed on taking a prima facie view of the matter. Serious disputed questions of facts raised at that stage, requiring evidence cannot be gone into. Unless undisputed evidence is produced by the husband clearly establishing that the wife is gainfully employed, relief of interim maintenance cannot be declined."
(Emphasis supplied)
12. Here, it is further apposite to note that the grant of interim maintenance depends on multitudinous factors, such as; status of the parties, reasonable wants of the claimant, independent income and property of the claimant, etc. In this Digitally signed by ABHISHEK 4 Zahir Abdullah v. Omar Abdullah, 2023 SCC OnLine Del 5341. ABHISHEK GOYAL GOYAL Date:
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal 2024.07.30 16:21:15 +0530 Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 15 of 30 regard, reference is made to the decision in Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622, wherein the Hon'ble High Court of Delhi, noted the following considerations, whilst determining a claim for interim maintenance;
"8. Unfortunately, in India, parties do not truthfully reveal their income. For self-employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s. 125 Cr. P.C. is adjustable against the amount awarded u/s. 24 of the Act."
(emphasis supplied)
13. Remarkably, though, the aforesaid findings were tendered by the Hon'ble Court in the context of the provisions under Section 24 of the Hindu Marriage Act 1955, however, were reiterated with approval in the subsequent decision of the Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:21:21 +0530 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 16 of 30 Hon'ble Supreme Court in Rajnesh v. Neha, (Supra.). In fact, in the said dictate, the Hon'ble Court enunciated additional factors such as; '(a) age and employment of parties; (b) right of residence; (c) earning of wife; (d) maintenance of minor child; and (e) serious disability or ill health' , which, as per the Hon'ble Court, are required to be considered at the stage of such determination. Here, this Court deems it apposite to reproduce the relevant extracts from the dictate of the Hon'ble Supreme Court in Rajnesh v. Neha, (Supra.), wherein the Hon'ble Court noted in the context of foregoing, as under;
"78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112: (2012) 3 SCC (Civ) 290]
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.07.30 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal 16:21:25 +0530 Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 17 of 30 Salkan, (2019) 12 SCC 303: (2018) 5 SCC (Civ) 596: (2019) 4 SCC (Cri) 339]"
(Emphasis supplied)
14. Notably, the core and crux of the repeated avowals of the superior courts is that discernment of quantum of maintenance primary warrants fortification5 that the standard of living as enjoyed by the wife during the marriage, is maintained by the husband even after the marriage ceases to exist. Quite comprehensibly, it is for this reason that the Hon'ble High Court of Delhi in Rishi Kumar v. Suman, 2008 SCC OnLine Del 38, while confronted with an issue of an akin kind, remarked as under;
"9. Suffice would it be to state that in matrimonial disputes the income of every husband disappears even when in employment. It is noted that husband's resort to excessive deductions from their salaries. All kinds of loans are taken and monthly deductions are effected from their salaries.
10. In my opinion, the socio-economic background of the parties is a relevant consideration while determining the income of a respective spouse.
*** *** ***
13. At the time when he got married, obviously, petitioner had a good income for the reason if he was earning a meagre sum of Rs. 6,000/- to Rs. 7,000/- per month, the girl's family would not have married their daughter to him.
14. The family of the bride and the groom come from a well-off strata of the society.
15. The wife would be entitled to the same standard of living to which she was used to when living with her husband. She would be entitled to use the same kind of electrical and electronic gadgets. Why should she be denied the use of a car?"
(Emphasis supplied)
15. Ergo, being cognizant of the principles hereinunder enunciated, this Court would now proceed with the determination of the rival contentions of the parties, i.e, of husband and wife in the instant case. Conspicuously, one of the primary contentions Digitally signed 5 Arvind Kishore v. Neha Mathur, 2022 SCC OnLine Raj 1510 ABHISHEK by ABHISHEK GOYAL Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal GOYAL Date: 2024.07.30 16:21:30 +0530 Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 18 of 30 of the Ld. Counsel for the husband, while impugning the grant of interim maintenance in favour of the wife is that the wife has alternate sources of income and that she has been running a NGO in the name of, 'Helping Hands for Needy', thereby, acquiring steady source of income therefrom. In contrast, as aforenoted, Ld. Counsel for the wife, while vehemently refuting the said claims by/on behalf of the husband, contended that the wife works on charitable basis with the said NGO and that the money/credit entries reflected in her account have been received by her from her parents and sibling. However, in this regard, this Court outrightly reiterates that the said contentions cannot be deeply delved into at this stage as the same can only thoroughly evaluated after the parties have adduced their respective evidence(s) during the trial. As aforenoted, the Hon'ble High Court in Kanupriya Sharma v. State (Supra.) has unswervingly observed that serious disputed questions of facts, raised at the stage of determination of claim for interim maintenance, cannot be evaluated unless evidence in this regard is led. As a corollary, the relief of interim maintenance can be declined in favour of a wife, only under circumstances where the husband is able to demonstrate by undisputed evidence that she/the wife was gainfully employed, which is not the case here. In fact, it is not even the case of the husband that the wife was gainfully employed and able to meet her expenses prior to marriage and continued to do so even post her matrimony. On the contrary, the only contention raised by the Ld. Counsel for the husband to negate the wife's claim of maintenance is that she is able bodied, qualified and competent and has wilfully opted not to gain employment, disentitling her to any claim from the husband. However, the said contention, as aforenoted, does not find favour Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 19 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:21:35 +0530 with this Court, considering the evidence regarding the deliberate omission on the part of the wife to gain employment is wanting at this stage and further in light of persistent declaration of superior courts. In fact, in this regard, the superior courts 6 have tirelessly asserted that merely because the wife is capable of earning, cannot be a sole factor for refusing or reducing her claim for maintenance. Needless to mention, it is trite law 7, 'capability of earning' and 'actual earning' are two different requirements/aspects and as aforenoted, a mere capability of earning cannot be a determinative consideration to reduce or deny the claim for interim maintenance to a wife/spouse. Reference in this regard is further made to the decision in Arvind Singh v. Rajni, 2023 SCC OnLine Del 6776, wherein the Hon'ble High Court of Delhi, whilst confronted with a similar conundrum, remarked as under;
"16. On the other hand, the sole ground on which the husband has sought reduction of maintenance is that the respondent/wife has a degree of B.Sc. There is no denial that the wife is a graduate having a degree, but she has never been gainfully employed. No inference can be drawn that merely because the wife is holding a degree of graduation, she must be compelled to work. It can also not be presumed that she is intentionally not working solely with an intent to claim interim maintenance from the husband."
(Emphasis supplied)
16. In so far as the contention of the Ld. Counsel for the husband pertaining to incorrect deduction of the husband's income as Rs. 50,000/- (Rupees Fifty Thousand only), in contrast to Rs. 40,000/- (Rupees Forty Thousand only) as per his income tax returns placed on record, is concerned, this Court is of the considered opinion that from the material placed on record, no 6 Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715; and Arun Vats v. Pallavi Sharma, 2019 SCC Online Del 11817. Digitally signed 7 Shailja & Anr. v. Khobbanna (2018) 12 SCC 199 ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal 16:21:40 +0530 Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 20 of 30 fallacy can be attributed to the finding of the Ld. Trial Court determining the amount/quantum of husband's income as Rs. 50,000/- (Rupees Fifty Thousand only) at this stage, basis the material placed on record. This is especially so for the reason that said determination by the Ld. Trial Court appears to be premised only a prima facie assessment of the material placed on record of the Ld. Trial Court, wanting production/adducing of evidence by the husband and wife, at the stage of final determination. Pertinently, Ld. Trial Court, in this regard, had explicitly observed, "...In matrimonial issues, it is a matter of knowledge that both the parties tend to hide the status of their actual incomes and ITRs can never be the estimate of actual earning of a party, however, in the present matter, no ground exists at this stage to assess the income of respondent no. 1 more than Rs. 50,000/- per month in light of ITRs placed on record by respondent no. 1..." . Needless to mention that this Court is also conscious of the fact that it is a settled law8 that certain degree of guesswork in such ascertainment is permissible, considering a tendency of parties engrossed in a matrimonial conflict to disclose their incorrect, reduced or understated source(s) as well as quantum of income/earnings. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Kiran Tomar v. State of U.P., 2022 SCC OnLine SC 1539, wherein the Hon'ble Court held as under;
"10. On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the 8 Jyotsna Sofat v. Gaurav Sofat, 2010 SCC OnLine Del 3899; and Shailesh Gupta v. Renu, 2011 SCC OnLine Del 5329.
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal
Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 21 of 30
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.07.30
16:21:45 +0530
appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met."
(Emphasis supplied)
17. Pertinently, Ld. Counsel for the husband has further fervently argued that the Ld. Trial Court, while passing the impugned order, failed to consider recurring amount of housing loan, automatically debited from his account, way prior to his marriage, while determining the income of the husband. In fact, in this regard, Ld. Counsel has strenuously argued that the impugned order was passed by the Ld. Trial Court, oblivious of the dictate of the Hon'ble Supreme Court in Bhushan Kumar Meen v. Mansi Meen, (Supra.), wherein the Hon'ble Court had held that the deduction towards the housing loan has to be taken into consideration for arriving at the sum in hand, for calculating the amount of maintenance for the wife. Relevantly, in order to appreciate the said contention, this Court deems it apt to reproduce the relevant extracts from the said dictate as under;
"6. Having heard the learned counsel for the respective parties, and considering the reality of the situation to the effect that the appellant is receiving a sum of about Rs 9000 in hand after deduction of various amounts, including the instalments towards repayment of the home loan, we are of the view that the amount as awarded by way of interim maintenance is on the high side. At the same time, we cannot also shut our eyes to the fact that at present the respondent wife is not employed or at least there is nothing on record to indicate that she is employed in any gainful work. However, having regard to the qualifications that she possesses, there is no reason why she ought not to be in a position to also maintain herself in the future. Accordingly, we modify the order passed by the learned Magistrate, granting Rs 10,000 per month to the respondent wife by way of interim maintenance and direct that the appellant husband shall pay to the respondent wife a sum of Rs 5000 per month instead of Rs 10,000, and Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 22 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:21:50 +0530 all other terms and conditions, as indicated by the learned Magistrate, will continue to operate."
(Emphasis supplied)
18. Strikingly, from a conscientious perusal of the aforesaid edict, it is observed that the rationale behind the reduction of interim maintenance granted to the wife in the said case was the amount of such interim maintenance was more than the take home salary of the husband. However, in the considered opinion of this Court, the facts of the present case would be governed by the earlier decision of the Hon'ble Supreme Court in Kulbhushan Kumar (Dr) v. Raj Kumari, (Supra.) , wherein the Hon'ble Court unequivocally held that only compulsory statutory deductions as income tax can be deducted from the gross salary and that no deductions are permissible for payment of house rent or electricity charges. In this regard, relevant extract from the decision in Kulbhushan Kumar (Dr) v. Raj Kumari, (Supra.) , is reproduced as under;
"19. It was further argued before us that the High Court went wrong in allowing maintenance at 25 per cent of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view, some of these deductions are not allowable for the purpose of assessment of "free income" as envisaged by the Judicial Committee. Income tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant's practice as a physician would be deductible only so far as allowed by the income tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car."
(Emphasis supplied) Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 23 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:21:55 +0530
19. Noticeably, from a conjoint reading of the aforesaid, it would be quite comprehensible that the reliance of the Ld. Counsel for the husband on the decision in Bhushan Kumar Meen v. Mansi Meen, (Supra.), in the considered opinion of this Court, is quite misplaced and would not come to the aid of the husband in the manner, as sought for the reasons, as aforenoted. Needless to reiterate the reasoning behind the reduction of interim maintenance granted to the wife in the said decision of the Hon'ble Apex Court appears to be the fact that the amount of such interim maintenance was more than the take home salary of the husband, which is not the case here. In fact, quite recently, the Hon'ble High Court of Allahabad in Rana Pratap Singh v. Neetu Singh, 2024 SCC OnLine All 905, while relying on the decision in Kulbhushan Kumar (Dr) v. Raj Kumari, (Supra.) , has also reiterated in unambiguous terms, as under;
"20. The Hon'ble Apex Court in Dr. Kulbhushan Kumar v. Smt. Raj Kumari, (1970) 3 SCC 129 has held that only compulsory statutory deductions as income tax can be reduced from the gross salary. No deduction is permissible for payment of LIC, home loan, instalments towards payment of loan for purchasing land or premium of policy of insurance.
21. Thus, the alleged deduction from the gross salary of the revisionist/husband due to payment for premium of insurance or instalment of plots purchased by him cannot be taken into consideration as no such deduction from gross salary is permissible under the law."
(Emphasis supplied)
20. Similarly, the Hon'ble High Court of Delhi in Chanchal Verma v. Anurag Verma, 2022 SCC OnLine Del 2993 , in a situation of comparable nature, observed as under;
"32. It has been held categorically in the case of Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694, that only statutory mandatory deductions from the income of the husband are permissible to be deducted for the purpose of computation of his Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 24 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.07.30 16:22:01 +0530 income for the purpose of grant of maintenance. The observations of the Court read as follows:
"...24. In the opinion of this Court, while calculating the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted..."
33. The court further reiterated what was held by the Hon'ble Punjab & Haryana High Court in the case of Seema v. Gourav Juneja, 2018 SCC OnLine P&H 3045 which is stated as under:
"13. In a nutshell, a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child, and parents by availing loans and paying EMIs thereon, which would lead to a reduction of his carry home salary..."
34. Similarly in Dr. Kulbhushan Kunwar v. Raj Kumari, (1970) 3 SCC 129, the Hon'ble Supreme Court while deciding the fixation of rate of maintenance, had made the following observations:
"...19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of assessment of "free income" as envisaged by the Judicial Committee. Income Tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant's practice as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car..."
35. In the present case, on one hand, the husband was being allowed to create an asset i.e., a house and on the other, the wife was being denied maintenance without there being any material to prima facie Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 25 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:22:06 +0530 substantiate that she was employed and having an income to sustain herself. The learned Trial Court also failed to take note of the fact that law mandates that the wife is entitled to the same status of living and amenities as enjoyed by her husband, as also observed by this Court in Sarita Bakshi v. State, 2022SCC OnLine Del 1707."
(Emphasis supplied)
21. Here, it is further pertinent to refer to the decision of the Hon'ble High Court of Delhi in Nitin Sharma v. Sunita Sharma (Supra.), wherein the Hon'ble Court inter alia repelled the contention of the husband pertaining to deduction of rental amount paid by him, while ascertaining his salary, recognizably, noting that the husband is duty bound to arrange for accommodation of his wife and children. Relevant extract of the said decision is reproduced as under;
"26. So far as the plea put-forth by the husband that he has to pay rent for his accommodation is concerned, it cannot be taken into consideration, as he is duty bound to arrange for accommodation for his wife and children, who are dependent upon him. Moreover, the claim of wife is that husband is staying in the house owned by his mother, which is a three storeyed building, of which one floor is occupied by her, on another floor husband is residing and as per rent agreement placed on record, he is paying a sum of Rs. 8,000/- p.m. towards rent to his mother. During the course of arguments, it was also admitted by learned counsel for husband that due to covid-19 husband was living in his mother's house but he intends to soon move out to a rented accommodation and also alleged that the wife along with children is staying at her brother's house, which is disputed by learned counsel for wife who has placed before this Court a copy of rent agreement which shows that wife is staying in a rented accommodation."
(Emphasis supplied)
22. Consequently, in light of the foregoing, this Court reiterates that the decision of the Hon'ble Apex Court in Bhushan Kumar Meen v. Mansi Meen, (Supra.) would not come to aid and rescue of the husband, as entreated by the Ld. Counsel for the Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 26 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:22:10 +0530 husband. On the contrary, in view of the aforenoted judicial dictates in Kulbhushan Kumar (Dr) v. Raj Kumari, (Supra.); Rana Pratap Singh v. Neetu Singh, (Supra.); Chanchal Verma v. Anurag Verma, (Supra.); and Nitin Sharma v. Sunita Sharma (Supra.), it is unambiguously observed that no deduction(s) is/are permissible, while ascertaining the income of the husband, against the amounts expended towards the payment of LIC, home loan, instalments towards payment of loan for purchasing land/house or premium of policy of insurance. Needless to reiterate that husband cannot shirk its responsibility of maintenance of his wife by seeking deduction towards such unpermitted claims, especially when the superior courts have recurrently noted9 that, "the obligation of the husband to provide maintenance stands on a higher pedestal than the wife"
Consequently, this Court is of the considered opinion that no reasonable grounds or justification is forthcoming from/on behalf of the husband, convincing this Court to set aside the impugned order, as prayed for.
23. In as much as the contention of the Ld. Counsel for the wife pertaining to enhancement of the quantum of interim maintenance to wife is concerned, this Court is of the considered opinion that no ground or reasons are also placed before this Court to convince it to permit such a claim/entreaty. As aforenoted, once the Ld. Trial Court has reasonably reached an estimated amount of income of the husband as Rs. 50,000/- (Rupees Fifty Thousand only), based on material placed on record, grant of Rs. 18,000/- (Rupees Eighteen Thousand only) per month as the interim compensation to the wife, is not only reasonable, rather, seems in consonance with the observations of 9 Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705; and Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52.
Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal
Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 27 of 30
Digitally signed by
ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2024.07.30
16:22:15 +0530
the Hon'ble High Court of Delhi in Babita Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775 , wherein the Hon'ble Court permitted 30% percent of the husband's gross income, post permissible statutory deductions, to be paid as the maintenance amount. Appositely, relevant extracts of the said decision are reproduced as under;
"19. In view of the above, I am of the view that the impugned order to the extent that it awards maintenance at 15% of the gross salary after deduction of minimum statutory legal deductions is not sustainable. The order is, accordingly, modified to the extent that petitioner is held entitled to 30% of the gross income of the respondent after the minimum statutory deductions.
20. Accordingly, Director General CISF, is directed to deduct 30% of the gross income of the respondent, after making minimum statutory deductions, and pay the same directly to the petitioner towards the future monthly maintenance amount."
(Emphasis supplied)
24. Clearly, in light of the aforesaid, it is quite explicit and reiterated that the grant of maintenance must be premised on a reasonable estimation of the diverging interests of parties. Needless to further reiterate that neither such a grant should be exorbitant so to saddle a spouse with unnecessary and unjust encumbrances, nor, a mere façade, permitting him/her to evade from their matrimonial responsibility(ies). Clearly, it is for this reason that the Hon'ble Apex Court in Rajnesh v. Neha, (Supra.), remarked as under;
"81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 :
(2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] The maintenance amount awarded must be reasonable and realistic, and avoid either of the two Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 28 of 30 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:22:20 +0530 extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort."
(Emphasis supplied)
25. Consequently, when all the facts and circumstances of the present case as well as material placed on record are scrupulously analysed, this Court does not find any reason for entertaining the wife's prayer seeking an enhanced amount of interim maintenance at this stage. Needless to mention that not only has the Ld. Trial Court reasonably estimated the income of the husband, rather, seemingly being wary of the obligation of the husband towards the maintenance of his mother, has granted/permitted a sum of Rs. 18,000/- (Rupees Eighteen Thousand only) per month in favour of the wife, in which no shortfall/lacuna is deducible by this Court at the present stage. Needless to further mention, the elaborate determination of the merits of the present case as well as conflicting claims are subject matter(s) of trial, which can be determined only after parties have led their respective evidence before the Ld. Trial Court.
26. Conclusively, in conspectus of above, this Court unambiguously reaches a conclusion that no reasons/grounds are made out either by the husband or the wife to modify, alter or set aside the order dated 16.10.2023 ('impugned order'), passed by Ld. MM-03, Central, (Mahila Court), Central, Tis Hazari Courts, Delhi in Ct. Case No. 1994/2022, titled as; 'Swati Aggarwal v. Manish Garg', determining the application, filed on behalf/by the wife, in terms of the provisions of Section 23 read with Section 26 DV Act. Accordingly, for the reasons noted herein, Crl. Appeal No. 274/2023, preferred by husband/Mr. Manish Garg Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 29 of 30 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.07.30 16:22:24 +0530 and Crl. Appeal No. 281/2023, preferred by wife/Ms. Swati Aggarwal deserve to be dismissed and are hereby dismissed. As a corollary, impugned order dated 16.10.2023, passed by the Ld. Trial Court is hereby, upheld.
27. Trial Court Record be sent back along with a copy of this order/judgment.
28. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.07.30 16:22:30 +0530 Announced in the open Court (Abhishek Goyal) on 30.07.2024 ASJ-03, Central District, Tis Hazari Courts, Delhi Crl. Appeal No. 274/2023 Manish Garg v. Swati Aggarwal Crl. Appeal No. 281/2023 Swati Aggarwal v. Manish Garg Page No. 30 of 30