Delhi District Court
Ms. Rinki Arya vs Mr. Rohit Goswami on 22 August, 2023
IN THE COURT OF SHRI SUNIL GUPTA,
ADDITIONAL SESSIONS JUDGE6, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 16 of 2023
IN THE MATTER OF:
Ms. Rinki Arya
W/o Mr. Rohit Goswami
D/o Late Sh. Ashok Kumar Arya,
R/o H. No. C717, Lower Ground Floor,
Khasra No. 936/2, Chhattarpur Extension,
New Delhi110074.
................Appellant
Versus
1. Mr. Rohit Goswami
S/o Sh. Sunil Goswami
2. Sh. Sunil Goswami
(FatherinLaw)
3. Smt. Raj Bala
(MotherinLaw)
4. Prateek
(BrotherinLaw)
All Resident of:
CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 1 /14
CA No. 230/2023 Rohit Goswami Vs. Rinky Arya
SUNIL
GUPTA
Digitally signed by
SUNIL GUPTA
Date: 2023.08.22
16:41:57 +0530
E1, 122/5
4th Cross Road, Block AB,
Sonia Vihar, New Delhi94.
.............Respondents
Instituted on : 13.01.2023
Reserved on : 21.08.2023
Pronounced on : 22.08.2023
And in
CRIMINAL APPEAL NO. 230/2023
IN THE MATTER OF:
Mr. Rohit Goswami,
S/o Sh. Sunil Goswami
R/o E1, 122/5, 5th Pusta Sonia Vihar,
New Delhi110090.
.......Revisionist
Versus
Ms. Rinki Arya
D/o Sh. Ashok Kumar Arya
W/o Sh. Rohit Goswami
R/o H. No. C560/1,
JVTS Garden, Chattarpur Ext.
CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 2 /14
CA No. 230/2023 Rohit Goswami Vs. Rinky Arya
SUNIL
GUPTA
Digitally signed
by SUNIL GUPTA
Date: 2023.08.22
16:42:09 +0530
New Delhi110074.
........Respondent
Instituted on : 19.01.2023
Reserved on : 21.08.2023
Pronounced on : 22.08.2023
JUDGMENT
1. Vide this common judgment, I shall dispose of the instant two cross appeals filed by Ms. Rinki Arya and Mr. Rohit Goswami respectively u/s 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) challenging the order dated 12.12.2022, passed by Ld. Metropolitan Magistrate03, Mahila Court, South District, Saket Courts, New Delhi in case bearing CC No.3608/2020 titled as "Rinki Arya Vs. Rohit Goswami" whereby Ld. Trial Court has disposed of the application U/s 23 of the Act filed by Ms. Rinki Arya and has granted Rs. 5,000/- per month as an interim maintenance alongwith Rs. 5,000/- per month towards future rent in lieu of alternative accommodation to her subject to her placing on record rent agreement/rent receipts. For the sake of convenience, the parties shall be referred to by their status before Ld. Trial Court.
2. Briefly stated the facts as per record are as under: An application u/s 12 of the Act was filed by aggrieved Ms. CA No. 16/2023 CA No. 230/2023 Rinky Arya Vs. Rohit Goswami Rohit Goswami Vs. Rinky Arya Page No. 3 /14 SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:42:17 +0530 Rinki Arya against her husband Mr. Rohit Goswami, her fatherinlaw Mr. Sunil Goswami, her motherinlaw Smt. Raj Bala and her brotherinlaw Mr. Prateek which was taken up by Ld. Magistrate on 15.02.2020. Notice was issued to Mr. Rohit Goswami vide order dated 03.03.2020 and summoning of remaining family members was deferred. After considering the DIR alongwith record, remaining family members were summoned vide order dated 17.01.2022. During the course of proceedings, an application U/s 23 of the Act filed by aggrieved was disposed of by Ld. Magistrate after considering the submissions from both the sides and material available on record, vide order dated 12.12.2022. By way of said order, the aggrieved was granted interim maintenance of Rs. 5,000/ per month alongwith a sum of Rs. 5,000/ per month for future rent subject to placing on record rent agreement/rent receipt. That order is being challenged in these proceedings by both the parties by way of these appeals.
3. Arguments heard.
4. It has been argued on behalf of aggrieved that Ld. Trial Court has fell in error in passing the impugned order as the maintenance granted to her was too low considering the fact that the monthly income of the respondent no.1 has been assessed as Rs. 50,000/ per month. It has been argued that in a metropolitan city like Delhi, it is not possible for any woman to sustain herself in a meager sum of Rs. 5,000/. It was further CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 4 /14 CA No. 230/2023 Rohit Goswami Vs. Rinky Arya SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:42:26 +0530 argued that the respondent no.1 was living a lavish lifestyle and was maintaining a car make Tata Tiago, one Scooter and one Motorbike and he has cleverly concealed his monthly income which was more than Rs. 1 lac per month. It was argued that the aggrieved was entitled to lead similar lifestyle as that of the respondent no.1. Prayer has been made for setting aside of the impugned order and for granting interim maintenance to the tune of Rs. 25,000/ per month. Prayer has also been made for dismissal of the revision petition filed by respondent no.1.
5. On the other hand, it has been argued by Ld. Counsel for respondent no.1 that Ld. Trial Court has fell in error in granting the interim maintenance alongwith rent in lieu of alternative accommodation to the aggrieved as the aggrieved has not approached the Court with clean hands. It was argued that the aggrieved was working as a teacher in Surya Public School and was also providing tuitions at ground floor of her parental home. It has been submitted that a CD containing the conversation of the aggrieved/her mother with another person which is proof of these facts is already on record. It was further argued that the respondent no.1 did not commit any domestic violence against the aggrieved and that it was the aggrieved who on her own moved out of the matrimonial home without there being any reason for doing so. It was further argued that the respondent no.1 was having the liability to maintain his old aged parents suffering from various medical ailments. Prayer has been made for setting aside of the impugned order.
CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 5 /14 SUNIL
CA No. 230/2023 Rohit Goswami Vs. Rinky Arya
GUPTA
Digitally signed
by SUNIL GUPTA
Date: 2023.08.22
16:42:35 +0530
6. I have considered the submissions from both the sides alongwith record.
7. Relevant portion of impugned order is being reproduced below for ready reference: "Considering the profession of respondent no.1, ITRs filed by him and bank statements, it can be presumed that he must be earning at least Rs. 50,000/ per month. Considering the over all facts and circumstances of the case, the financial status and qualifications of both the parties, liabilities of respondent no.1, this court finds it appropriate to grant an amount of Rs.5,000/ per month in favour of complainant as interim maintenance. The amount will include expenses towards clothing, medical and food expenses any other ancillary expenditure. The abovesaid amount shall be paid by respondent no.1 to the complainant from the date of filing of the present petition till the pendency of the present complaint. Respondent no.1 is further directed to pay Rs. 5,000/ per month towards rent in lieu of alternative accommodation. As complainant is currently residing with her brother, the same amount shall be paid as future rent subject to complainant placing rent CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 6 /14 CA No. 230/2023 Rohit Goswami Vs. Rinky Arya SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:42:44 +0530 agreement/rent receipts on record. Any ad interim maintenance that has already been ordered to be paid shall be accordingly adjusted."
8. The crux of appeal filed by aggrieved Rinky Arya is that the impugned order is wrong in granting interim maintenance to the tune of Rs.5,000/- per month only to her alongwith another sum of Rs.5,000/- per month as rent in lieu of alternative accommodation as same is way below the amount which should have been granted to her. On the other hand, the crux of appeal filed by the respondent no.1 Rohit Goswami is that the impugned order is wrong in directing him to pay interim maintenance of Rs.5,000/- per month to the aggrieved alongwith another sum of Rs.5,000/- towards monthly rent.
9. One of the grounds taken by respondent no.1 to assail the impugned order is that he did not commit any domestic violence against the aggrieved and that she has moved out of the matrimonial home on her own. Ld. Counsel for aggrieved has submitted that she was thrown out of her matrimonial home by the respondents.
10. Perusal of application u/s 12 of the Act filed on behalf of aggrieved shows that several allegations of mental and physical harassment, torture, abuses and physical assault for their dowry demands have been leveled against the respondents. Same have been so mentioned in the Domestic Incident Report dated 08.04.2021 also. So, a prima facie case for CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 7 /14 CA No. 230/2023 Rohit Goswami Vs. Rinky Arya SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:42:53 +0530 commission of domestic violence is made out against them. It is settled law that at the stage of consideration of application u/s 23(2) of the Act for interim maintenance, only the prima facie allegations regarding domestic violence are to be seen. Whether those allegations are true or not, cannot be determined at that initial stage. Same can be conclusively determined only after detailed evidence is led by both the parties. So, the impugned order cannot be faulted with on this ground.
11. Perusal of Affidavit of Assets and Liabilities dated 02.12.2022 filed on behalf of aggrieved Rinky Arya before Ld. Trial Court reveals that she has mentioned her educational qualification as BCA and NPTT. She has mentioned her monthly expenditure as Rs.30,000/- per month which includes expenditure to the tune of Rs.15,000/- per month on groceries/food/personal care/ clothing, Rs.1,000/- (approx) on telephone, Rs.500/- on T.V. Cable/Set top box/ Internet services, Rs.2,000/- per month on transportation by Metro, Rs.2,500/- on traveling through cabs and Rs.2,500/- on medical expenditure. She has also mentioned legal/litigation expenses as Rs.30,000/-. It is not clear as to whether the legal expenses mentioned are being incurred by her on monthly basis or yearly basis. In case, same were being incurred on yearly basis then also her total monthly expenditure comes out as Rs.26,000/- per month only (after adding Rs.2,500/- per month as litigation expenses). She has mentioned that she was not working anywhere and that she was dependent upon her brother. Further, she has mentioned that the respondent no.1 was earning Rs.1,50,000/- per month. She has also mentioned therein that she was not having the knowledge of assets and liabilities of her spouse.
CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 8 /14 Digitally CA No. 230/2023 Rohit Goswami Vs. Rinky Arya signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.22 16:43:03 +0530
12. Perusal of Affidavit of Assets and Liabilities dated 30.09.2022 filed on behalf of respondent no.1 before Ld. Trial Court reveals that he has mentioned his educational qualifications as B.Com and PGDBF. He has mentioned his professional qualification as STP. He has mentioned his monthly expenses as Rs.9,000/- per month. He has also mentioned that he was incurring expenses to the tune of more than Rs.3,000/- per month on his parents. He has mentioned the monthly income of his father as Rs.20,000/- to Rs.25,000/-. He has also mentioned that his father was paying EMI of Rs.15,600/- (approx) for a loan taken at the time of his marriage. He has also mentioned that he was earning Rs.20,000/- to Rs.22,000/- per month by working as Accountant. He has also mentioned about having taken a car loan of Rs.5,60,558/- in July, 2018 regarding which, he was paying EMI of Rs.8,280/-. He has also mentioned that the aggrieved was earning around Rs.30,000/- per month (approx) through self work of software installation and running tuition classes in the name of Arya Tuition Centre at property no. C-560/1, Ground Floor, JVTS Garden, Chhatarpur, Delhi-74. He has also mentioned that she was teaching in Surya Public School in Chhatarpur, South Delhi.
13. Ld. Counsel for aggrieved has submitted that the respondent no.1 was earning much more than that which has been disclosed in his income affidavit however he has failed to place on record any documentary proof regarding the same. He has relied upon ITR of the respondent no.1 for the assessment year 2020-2021 wherein partners/members own capital has been shown as Rs.5,47,667/- and fixed assets have been shown as amounting to Rs.8,30,935/- alongwith cash in hand amounting to CA No. 16/2023 CA No. 230/2023 Rinky Arya Vs. Rohit Goswami Rohit Goswami Vs. Rinky Arya Page No. 9 /14 SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:43:11 +0530 Rs.1,72,996/-. He did not elaborate as to how the capital brought by the respondent no.1 or the value of fixed assets is material for supporting his claim that the respondent no.1 was earning around Rs.1.5 lacs per month. The ITRs on record filed on behalf of respondent no.1 also does not show anything to suggest that he was earning more than Rs.1 lac every month. Having said that, it is to be noted that the parties tend to underestimate their real income in matrimonial disputes so as to escape from their liabilities. Similar observations were made by Hon'ble Apex Court in Kiran Tomar & Ors. Vs. State Uttar Pradesh & Anr. Crl. Appeal No.1865/2022 in following words:-
"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."
In these circumstances, Ld. Trial Court was justified in assessing the monthly income of the respondent no.1 as Rs.50,000/- per month.
14. Another argument advanced by Ld. Counsel for aggrieved is that out of monthly income of Rs.50,000/- of the respondent no.1, she has been awarded only a sum of Rs.5,000/- per month as interim maintenance alongwith another sum of Rs.5,000/- towards monthly rent. It was argued that the interim maintenance as well as monthly rent awarded was much below than what she was entitled for. It is to be noted here that Ld. Trial Court has considered a CD placed on record on behalf of respondent no.1 in the impugned order. A certificate u/s 65B Indian Evidence Act in support CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 10 /14 Digitally CA No. 230/2023 Rohit Goswami Vs. Rinky Arya signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.22 16:43:23 +0530 of that CD is also on record. This Court has seen the contents of the CD. It contains five videos including two videos dated 25.11.2020. The videos have been recorded in a clandestine manner. In the first video dated 25.11.2020, a lady apparently mother of the aggrieved is seen talking to a man and telling him that her daughter (aggrieved herein) was a teacher in Surya School and that she was giving tuitions to children studying in upto 10th class at her home. In the second video, the aggrieved is also talking in similar manner inside her home. She has told the person recording the video that she will charge Rs.1,500/- per month for the child studying in 1 st class and Rs.2,000/- per month for the child studying in 3 rd class. It is clear that those two videos have been shot after March, 2020 as there is conversation regarding closure of schools and students being taught by way of online classes which happened due to Covid-19 Pandemic in the year 2020. Earlier, an Affidavit of Assets, Income and Expenditure dated 10.02.2020 was filed by the aggrieved before Ld. Trial Court in compliance of judgment of Hon'ble Delhi High Court in Kusum Sharma Vs. Mahinder Kumar Sharma, FAO No. 369/1996 wherein she stated her occupation as House-wife and her monthly income as Nil. In her subsequent affidavit dated 02.12.2022 filed in compliance of judgment of Hon'ble Apex Court tilted as Rajnesh Vs. Neha & Anr. Crl. Appeal No.730/2020 also, she mentioned that she was not working anywhere.
When she was asked about the status of her employment by Ld. Trial Court, she stated that she was unemployed and that she has never worked. That submission is clearly contrary to the contents of videos as mentioned above which suggests that she has not come to the Court with clean hands. This aspect was dealt with by Ld. Magistrate in the impugned order in CA No. 16/2023 CA No. 230/2023 Rinky Arya Vs. Rohit Goswami Rohit Goswami Vs. Rinky Arya Page No. 11 /14 SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:43:31 +0530 following manner:-
"On specific query put to the complainant, she stated that she is unemployed and she has never worked. However, the photographs produced by respondent no.1 prima facie are sufficient proof to say that complainant is either working or has previously worked as a teacher in a school at some point of time in her life. The same material fact is concealed by complainant from this court which a tendency to disentitle her to receive any relief from this court, however, in the interest of justice, no adverse order is being passed against the complainant. The court is also mindful of the fact that merely if complainant is working, it does not disqualify her from receiving interim maintenance from her husband."
15. Ld. Counsel for respondent no.1 in his appeal has also relied upon the videos as contained in the CD on record and has argued that the aggrieved should not have been granted interim maintenance at all as she has not disclosed true facts before the Court. Interestingly, no submission has been made by Ld. Counsel for aggrieved regarding that CD, may be because he was not having anything to contradict its contents. As mentioned above, Ld. Trial Court was convinced that the aggrieved was concealing material facts and that same could have disentitled her from receiving any relief, however no adverse order was passed against her in the interest of justice. Another factor which weighed in the mind of Ld. CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 12 /14 CA No. 230/2023 Rohit Goswami Vs. Rinky Arya SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:43:39 +0530 Magistrate was that even if, the aggrieved was working, she was not disqualified from receiving interim maintenance from her husband/respondent no.1. This Court is unable to agree with said reasoning of Ld. Magistrate. When the Court was satisfied that there was material concealment on the part of aggrieved regarding her employment which was evident from material on record, no ground was made out to grant any relief to her. It is settled law that a litigant who does not come to the Court with clean hands, is not entitled to any relief from the Court. Reliance is placed on the judgment of Hon'ble Apex Court in Ramjas Foundation & Ors. Vs. UOI & Ors. Civil Appeal No.6662/2004 in which it was held as under:-
"14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case."CA No. 16/2023 CA No. 230/2023
Rinky Arya Vs. Rohit Goswami Rohit Goswami Vs. Rinky Arya Page No. 13 /14 SUNIL GUPTA Digitally signed by SUNIL GUPTA Date: 2023.08.22 16:43:49 +0530
16. The ground that even if she was gainfully employed still she was not disqualified from receiving interim maintenance from her husband is also of no consequence as that factor could have been taken into consideration by Ld. Trial Court only when the correct employment status of the aggrieved had come on record in her own documents.
17. Considering the above discussion and the fact of material concealment on the part of aggrieved, this Court is of the view that she was not entitled for any relief on her application u/s 23 of the Act as she has tried to play fraud upon the Court. Accordingly, no question arises of enhancing the interim maintenance amount or the amount of future rent granted to her. The impugned order dated 12.12.2022 of Ld. Trial Court is hereby set aside. If any amount has been paid in pursuance to said order, same shall be subject to final order to passed by Ld. Magistrate. Needless to say that both the parties shall be at liberty to prove their case by leading detailed evidence before Ld. Trial Court.
18. Resultantly, the Appeal No. 16/2023 preferred by Ms. Rinky Arya stands dismissed and Appeal No. 230/2023 preferred by Mr. Rohit Goswami stands allowed. Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.08.22 16:43:59 +0530 Announced in the open (Sunil Gupta) court on 22.08.2023 Additional Sessions Judge06, South , Saket Courts, New Delhi CA No. 16/2023 Rinky Arya Vs. Rohit Goswami Page No. 14 /14 CA No. 230/2023 Rohit Goswami Vs. Rinky Arya