Delhi District Court
Samir Khan vs Rakhi Marwaha @ Kulsum Parveen on 1 December, 2012
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ03 (EAST) KARKARDOOMA COURTS, DELHI
CA No. 61/12
1. Samir Khan
S/o Sh. Sami Ullah Khan
2. Sh. Sami Ullah Khan
S/o Late Abdullah Khan
3. Smt. Mumtaz Parveen
W/o Sh. Sami Ullah Khan
All R/o A123/1, Ashina Mumtaz
Dr. Ambedkar Colony,
Andheria More, Chhattarpur,
New Delhi110074.
............. Appellants
Versus
Rakhi Marwaha @ Kulsum Parveen
D/o Nathu Ram Jolly
R/o D9, Plot No. 24,
Akash Bharti Appartments
Patparganj, Delhi110092
............ Respondent
ORDER
1. An application has been filed seeking condonation of delay on the ground that the appellant had inadvertently filed a revision petition Crl. (A) No.61/12 Page 1 of 8 Samir Khan Vs.Rakhi Marwaha against the order, which was dismissed by the Ld. ASJ concerned as not maintainable and in the process the appellant lost time resulting into delay in filing of present petition. The application is allowed for the reason stated.
2. By this appeal u/s 29 of Protection of Women from Domestic Violence Act, herein after referred to as DV Act, appellant has challenged the order of Trial Court whereby he was directed to pay an amount of Rs.8000/ towards rent for alternative accommodation to the respondent.
3. Briefly the facts are that the parties were married as per Muslim Rites and Customs. The marriage however did not work. The respondent had filed a case u/s 406/498A/34 IPC, a complaint u/s 125 Cr.P.C. and a complaint u/s 12 of Domestic Violence Act. Her complaint u/s 125 Cr.P.C was dismissed by the same Court, which passed the impugned order allowing the rent allowance in the present case, on the ground that she was capable to maintain herself and so was not entitled for maintenance.
4. The appellant is before this Court on the ground that a settlement was arrived at in FIR No. 27/09, which was not acted upon by the respondent. The respondent is employed as Senior Executive with GE Money and was drawing the salary of Rs. 29,279/ per month in Crl. (A) No.61/12 Page 2 of 8 Samir Khan Vs.Rakhi Marwaha the year 2010 and is still working there while the appellant himself is out of job as he is not able to go out of country to the place where he was working because of an inquiry in respect of his passport.
5. Arguments heard.
6. Ld. Counsel for the appellant maintained that since there was a proper settlement before the CAW Cell on the basis of which the respondent had received the agreed amount, it was in appropriate on part of the Trial Court, to have not considered the said settlement. While Ld. Counsel for the respondent has argued that the incharge of CAW Cell did not do her duty properly and sided with the appellant in getting the aforesaid settlement recorded, regarding which complaints have also been given before appropriate authorities. Since the settlement, if any is from both the sides, one of the parties stating that the same was never arrived at, the same cannot be forced upon the nonagreeing party.
7. It is argued by the Counsel for the appellant that since the respondent was capable to earn, it was not proper for the Court to have ordered rental allowance, when the Court itself reached the conclusion, in other petition, that the respondent was not entitled for maintenance because of her capacity to earn. Ld. Counsel for the respondent argued that since right to residence is separately Crl. (A) No.61/12 Page 3 of 8 Samir Khan Vs.Rakhi Marwaha recognized under DV Act, the respondent was well within her rights to have received the rental allowance since it was not possible with her to live with the appellant in the same house.
8. Ld. Counsel for the appellant has relied upon the judgment of Hon'ble High Court in Sanjay Bhardwaj & Ors. Vs. The State & Another in Cr. M.C.No 491/2009 dated 27/08/2010 wherein the Hon'ble High Court held as under:
A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, services providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife.........Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management Crl. (A) No.61/12 Page 4 of 8 Samir Khan Vs.Rakhi Marwaha from Pondicherry University, the wife was MA & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized,he was not permitted to leave country,( the bail was given with a condition that he shall keep visiting Investigation Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.
We are living in an era of equality of sexes. The constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.
He has also relied upon the judgment of Hon'ble High Court in Crl.M.C. No. 3325/2010 titiled Kaveri Vs. Neel Sagar. The Hon'ble High Court in the aforesaid judgment held Crl. (A) No.61/12 Page 5 of 8 Samir Khan Vs.Rakhi Marwaha that the conclusion of the lower Courts that interim relief either of separate residence or claiming amount .... could not be granted .... since it was not claim of the petitioner that she was not able to maintain herself. Hon'ble High Court up held the finding of the Trial Courts that petitioner being employed and living separate and being major having her own independent source of income was not entitled to relief.
9. Respondent on the other hand relied upon the judgment of Hon'ble High Court in C.S.(OS)1307/10 titled Kavita Choudhary Vs. Evneet Singh, wherein the Hon'ble High Court allowed the residential allowances to the wife, holding that the husband was earning more then the wife on the basis of documentary evidence in respect of evidence of both the parties.
10.Combined reading of the judgments cited above would show that while the Hon'ble High Court has held that a wife who is earning less than the husband is entitled for monetary relief from the husband to take up a rental accommodation, where she is not able to live in a share house hold; the Hon'ble High Court in its other judgments has held that the husband can be directed to pay this allowance only if he is shown to be capable of paying the same and the wife is shown as in capable to maintain herself.
Crl. (A) No.61/12 Page 6 of 8 Samir Khan Vs.Rakhi Marwaha
11.Coming to the facts of the present case admittedly the respondent is working and earning Rs. 29,000 plus. The husband/ appellant was admittedly working out of India and he has not been able to leave the country because of the matrimonial disputes and the difficulties with passport authorities owing to the cases filed against him. The respondent has not been able to show that the appellant has taken up any job or his earning is same or similar to what he was earning earlier. The facts of the case thus are similar to those of the case in Sanjay Bhardwaj (supra) cited herein above. The Hon'ble High Court in Kaveri (supra) also held that a person capable to maintain self is not entitled to an order of separate residence under DV Act. While unlike in the case of Kavita Choudhary (supra) respondent has not been able to produce documentary evidence of income of the appellant.
12.The purpose of DV Act in providing residential protection to the women was to prevent vagrancy amongst women, who were resourceless and were turned out of the matrimonial homes by the husbands, who were not ready to keep them. It was under these circumstance, the law provided that such women shall be entitled for rental allowance from their husbands so that they can lead a respectable life. In the instant matter the respondent is an Crl. (A) No.61/12 Page 7 of 8 Samir Khan Vs.Rakhi Marwaha independent women and this factor has been the consideration before the Trial Court while it declined to grant her maintenance. Under such circumstances to hold that she is entitled for a residence allowance from the husband, who she has not been able to show, is earning more than her is not an appropriate order. The order dated 04/06/2011 is set aside. Appeal is allowed. Trial court record be sent back alongwith a copy of this order. Appeal file be consigned to Record Room.
Announced in the open
court on 01/12/12 (ANURADHA SHUKLA BHARDWAJ)
ASJ03, (EAST) KKD COURTS/DELHI
Crl. (A) No.61/12 Page 8 of 8 Samir Khan Vs.Rakhi Marwaha