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Delhi District Court

Sh. Mohit Kamra vs Ms. Abha Kamra on 28 October, 2020

               IN THE COURT OF MS. SWARANA KANTA SHARMA
               PRINCIPAL DISTRICT & SESSIONS JUDGE (NORTH)
                           ROHINI COURTS, DELHI


          Criminal Appeal No. 85/2020


          Sh. Mohit Kamra
          S/o Sh. Shyam Lal Kamra
          R/o H.No. 81, Priya Apartments,
          Sector­14, Rohini, Delhi                               ...Appellant

          Versus

1.        Ms. Abha Kamra
          W/o Sh. Mohit Kamra

2.        Ms. Srijal Kamra
          D/o Sh. Mohit Kamra

          Both R/o H.No. 81,
          Priya Apartments,
          Sector­14, Rohini, Delhi                               ...Respondents

          Date of institution            :         26.09.2020
          Arguments heard on             :         27.10.2020
          Date of pronouncement          :         28.10.2020


Appearance through video conferencing:
Sh. Nitin Sehgal, Ld. Counsel for the appellant.
Sh. Harminder Khullar, Ld. Counsel for both the respondents.




CA No. 85/20                  Mohit Kamra v. Abha Kamra & Anr.            Page 1 of 10
 ORDER:

By this order, I shall dispose of an appeal filed by the appellant/husband (respondent before Ld. Trial Court) under provisions of Section 29 of Domestic Violence Act assailing the impugned order dated 25.08.2020 passed by the Court of Ms. Neha Mittal, Ld. MM, Mahila Court­01, North District, Rohini Courts, Delhi, in complaint case no. 2040/20 titled as Abha Kamra & Anr. v. Mohit Kamra & Anr., whereby Ld. Trial Court has allowed the maintenance application of the complainant/wife and has directed the appellant to pay an amount of Rs.20,000/­ per month each to the wife and daughter (respondents herein) for their maintenance w.e.f. 11.03.2020.

2. Alongwith the appeal, the appellant has also moved an application seeking exemption from filing certified copy of impugned order in the present appeal on the ground that due to non­functioning of Facilitation Centre, certified copy of impugned order could not be filed.

3. Firstly, I shall dispose of the application and then the appeal, if required.

4. Perusal of trial court record reveals that the maintenance application of the respondent no.1/complainant has been disposed of by Ld. Trial Court on 25.08.2020 holding that the income of appellant/ husband shall be divided into four parts and the complainant no.1 & 2 CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 2 of 10 shall be entitled to one portion i.e. Rs.20,000/­ each towards their maintenance from the date of filing of the petition i.e. 11.03.2020 (It seems that the date has been inadvertently mentioned as 11.02.2020 by the appellant in the true typed copy). It seems a genuine difficulty of the appellant that due to spread of COVID­19 Pandemic, he could not get the certified copies of the impugned order in time. Moreover, since the trial court record has been received, accordingly, the application seeking exemption from filing certified copy of impugned order is allowed.

5. Now I shall take up the appeal.

6. Notice of the appeal was issued to the respondents. Trial Court record was summoned.

7. Brief facts of the case as alleged are that appellant and respondent no.1 had got married with each other on 21.02.2003 as per Hindu rites and rituals. Two children namely Srijal Kamra (respondent no.2 herein) and Vansh Kamra were born out of the said wedlock. It is alleged that after around 17 years of marriage, respondent no.1 has filed the complaint under Section 12 of D.V. Act against the appellant and his father on the false grounds of cruelty.

8. The respondents herein have filed reply to the present CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 3 of 10 appeal wherein they have prayed that the present appeal may be dismissed with costs since the appellant has concealed the material facts.

9. I have heard arguments on behalf of the parties and have gone through the record. I have also gone through the trial court record.

10. Ld. Counsel for the appellant has argued that the income of appellant/husband is not sufficient to pay maintenance of Rs.20,000/­ per month to each of the respondents. It is also argued that the respondent/wife is working and is gainfully employed and that she has concealed this fact from Ld. Trial Court, therefore, she is not entitled to any maintenance. It is also argued that upbringing of the child is the joint duty and obligation of the parents and in the present case also, the mother is gainfully employed.

11. Ld. Counsel for the appellant has further argued that respondent no.1 is well educated. She is M.Com. and has Diploma in Marketing from Ghaziabad. She was also proprietor of M/s Srikam manufacturing unit and was earning good income from there, which unit has recently been closed by her. Ld. Counsel for the appellant has further argued that respondent no.1 was earning before marriage and since she is capable of earning, therefore, she is not entitled to claim CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 4 of 10 any maintenance from the appellant.

12. Ld. Counsel for the appellant has also argued that respondent no.1 is an income tax payee and is having PAN card in her name. Respondent no.1 is also having fixed deposit in her name in the Karur Vysya Bank, Prashant Vihar, which she has concealed from the court. Ld. Counsel for the appellant has also argued that all the allegations made by the respondent/wife in the complaint, are false.

13. Ld. Counsel for the appellant has further argued that Ld. Trial Court has not passed a speaking order and has also not considered the material facts on record while passing the impugned order. It is further argued that the appellant has only one working unit and he runs his business under the name & style of M/s Earl's from Barhi Sonepat, Haryana. However, the said unit is at present kept mortgaged with IDBI Bank, Prashant Vihar, Delhi and the said plot has not been given on rent to generate some extra income. It has been further argued that the said plot is the only source of all income of the appellant.

14. Ld. Counsel for the appellant has further argued that the appellant is having one Sumo Grand car, whose value has become negligible in the market and another is Datsan Go car, which is a second hand car, and these cars are not luxury cars. Ld. Counsel for the appellant has argued that the condition of these cars shows the CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 5 of 10 unsound financial status of the appellant.

15. Ld. Counsel for the appellant has further argued that Ld. Trial Court has not taken into account the income of respondent/wife. The respondent/wife is bearing her huge traveling expenses as per her income affidavit, which has not been counted for by Ld. Trial court, and therefore, she must be having some extra income. It has been further argued that income of the appellant/husband has been severely affected due to the spread of COVID­19.

16. Ld. Counsel for the appellant has also argued that the impugned order is also illegal and incorrect to the extent that appellant/ husband has been directed to pay the arrears of the maintenance since 11.03.2020, however, the appellant/husband has already paid the school/education fees of his daughter and that this fact is also mentioned in the income affidavit of respondent no.1.

17. On the other hand, Ld. Counsel for the respondents has argued that appellant/husband is earning Rs.5 Lakhs per month from his business and he is enjoying a lavish lifestyle by maintaining a flat in Rohini equipped with television, refrigerator, three air conditioners as declared in his affidavit and that the appellant is also maintaining two cars. Ld. Counsel for the respondents has also argued that presently the expenses of the respondents are being borne by the father of CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 6 of 10 respondent no.1 and that sometimes the sister of respondent no.1 also helps her. It is argued that the appellant/husband is only bearing the expenses of the minor son.

18. After hearing arguments and going through the record, I am of the opinion that a perusal of the record shows that Ld. Trial Court has passed well reasoned order wherein the income of the appellant/ husband was assessed @ Rs.1,00,000/­ per month as per his income tax returns, net profit of the company as well as the property owned by him.

19. The argument of Ld. Counsel for the appellant that condition of two cars of respondent no.1, which are not luxury cars, shows the unsound financial status of respondent no.1, is not tenable. In my considered view, maintaining two cars in a metropolitan city itself shows the sound financial status of a person.

20. The argument of Ld. Counsel for the appellant that Ld. Trial Court has not passed a speaking order and has also not considered the material facts on record while passing the impugned order, is also not tenable since in my considered view, Ld. Trial Court has rightly held that prima facie allegations of domestic violence stand proved from the averments made in the complaint as well as in the DIR. Ld. Trial Court has also, at this stage, rightly turned down the defence of the appellant CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 7 of 10 that it is the complainant/wife who had actually harassed the appellant/husband, since this is a matter of trial which can be decided only after evidence is led.

21. The contention of Ld. Counsel for appellant that the appellant/wife is highly qualified and is fully capable to maintain herself, is not tenable in view of observation made by Hon'ble Supreme Court in Shailja v. Khobbana (2018) 12 SCC 199 that 'capable earning' and 'actual earning' are two different requirements. Therefore, Ld. Trial Court has rightly held that mere capacity of woman to earn, cannot be a ground to deny her maintenance unless and until she is actually earning.

22. It is the case of the respondent/wife that she is not working at present. It is admitted case of the parties that minor daughter is living with her mother/respondent no.1. The fact that the daughter is in custody of respondent no.1, is sufficient further to entitle her to maintenance to maintain same level of living as her husband.

23. In any case, the present order is only an interim order. All the contentions and documents are yet to be tested on the touch­stone of cross­examination and evidence to be led by each party and the amount remains adjustable after final order to be passed by the court. The amount already paid by the appellant/husband towards the CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 8 of 10 education fees of respondent no.2/daughter shall remain adjusted from the arrear of maintenance since 11.03.2020 subject to furnish receipts of the same.

24. It is admitted case of the both the parties that minor daughter is living with her mother/respondent no.1 at the house of father of appellant and the entire responsibility of the educational expenses and other expenses is also being borne by her father and relatives since the respondent/wife is not presently working. The appellant has not filed anything on record to prove that the respondent/wife is gainfully employed or has any income to sustain herself. In any case, it is the responsibility of the appellant as a husband to provide not only maintenance but also same standard of living as he is enjoying, to his wife and the minor daughter, who are at present living with him.

25. On the basis of above discussion, I am of the view that findings of Ld. Trial Court are justified and well reasoned. There is no illegality, infirmity or impropriety in the impugned order dated 25.08.2020 of Ld. Trial Court and the same is upheld. The appeal is hereby dismissed.

26. Nothing expressed herein shall tantamount to any expression on the merits of the case and the Ld. Judge will hear the matter as per law without being guided by any observations made in this order.

CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 9 of 10

27. TCR be sent back to Ld. Trial Court alongwith copy of order. The appeal file be consigned to the record room.

Announced through video conferencing today i.e. 28th October, 2020 (Swarana Kanta Sharma) Principal District & Sessions Judge (North) Rohini Courts, Delhi (sb) CA No. 85/20 Mohit Kamra v. Abha Kamra & Anr. Page 10 of 10