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Delhi District Court

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

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

          Criminal Appeal No. 89/2020

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

2.        Ms. Srijal Kamra (minor)
          D/o Sh. Mohit Kamra
          `
          Both R/o H.No. 81,
          Priya Apartments,
          Sector­14, Rohini, Delhi                                   ...Appellants

          Versus

1.        Sh. Mohit Kamra
          S/o Sh. Shyam Lal Kamra

2.        Sh. Shyam Lal Kamra

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

          Date of institution             :          03.10.2020
          Arguments heard on              :          27.10.2020
          Date of pronouncement           :          28.10.2020


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



CA No. 89/20               Abha Kamra & Anr. v. Mohit Kamra & Anr.            Page 1 of 10
 ORDER:

By this order, I shall dispose of an appeal filed by the appellants (wife and daughter) 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 (appellants herein) for their maintenance w.e.f. 11.03.2020.

2. Alongwith the appeal, the appellants have moved two applications. First application has been moved 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 fetched. Second application is moved seeking condonation of delay in filing the present appeal.

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

4. Perusal of trial court record reveals that the maintenance application of the appellants/complainants has been disposed of by Ld. CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 2 of 10 Trial Court on 25.08.2020 holding that the income of respondent no.1/husband shall be divided into four parts and complainant no.1 & 2 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 a genuine difficulty of the appellant/wife that due to spread of COVID­19 Pandemic, she 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. Alongwith the appeal, the appellants have also moved an application under Section 151 CPC for condonation of delay in filing the present appeal as there was delay in filing the present appeal.

6. It is averred by the appellants that they could not contact their lawyer to get the affidavit attested, hence, there was delay in filing the present appeal.

7. Ld. Counsel for the respondents has filed the reply to the application under reference and has argued that since the present appeal is time barred, the same may be dismissed with cost.

8. I am conscious of the fact that the delay is to be liberally construed, but there should be some plausible explanation from the CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 3 of 10 side of the person/party who is seeking indulgence of the Court in condoning the delay. It should not be taken that the condonation of delay is a matter of right to any party to the proceedings.

9. I am guided by the judgment of Hon'ble High Court of Delhi in Santosh & Ors. v. Shri Tek Chand, 134(2006) DLT 332, wherein it was held that, "rules of procedure are handmaiden to the end of justice and should not be permitted to effect substantial justice".

10. It has been, time and again, held by the Superior Courts that the delay shall be construed liberally and the Court should consider grant of delay liberally and should make an endeavour to decide the cases as far as possible on merits.

11. In these circumstances, the application moved by the appellants seeking condonation of delay in filing the present appeal, stands allowed.

12. Now I shall take up the appeal.

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

14. Brief facts of the case as alleged are that appellant no.1 and CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 4 of 10 respondent no.1 had got married with each other on 21.02.2003 as per Hindu rites and rituals. Two children namely Srijal Kamra (appellant no.2 herein) and Vansh Kamra were born out of the said wedlock. The respondents had always showered their love and affection to the male child only. However, they used to harass the appellants. Therefore, the appellants had moved to the Mahila Court by way of complaint case no. 2040/20 and that the respondents were restrained from dispossessing the appellants from the property bearing no. 81, Priya Apartments, Sector­14, Rohini, Delhi. The court was also pleased to grant the interim maintenance of Rs.20,000/­ each to the appellants from the date of filing of the petition i.e. 11.03.2020.

15. Ld. Counsel for the respondents has filed reply to the present appeal. It has been averred in the reply that the present appeal may be dismissed since the appellants have concealed the material facts.

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

17. Ld. Counsel for the appellants has argued that respondent no.1/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 CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 5 of 10 affidavit and that the respondent no.1 is also maintaining two cars. It is prayed that the interim maintenance should be enhanced to Rs.60,000/­ per month for both the appellants because the maintenance granted by Ld. Trial Court is not sufficient for the minimum/basic need of her livelihood. Ld. Counsel for the appellants has also argued that presently the expenses of the appellants are being born by the father of appellant no.1 and that sometimes the sister of appellant no.1 also helps her. It is argued that the respondent/husband is only bearing the expenses of the minor son.

18. On the other hand, Ld. Counsel for the respondents has argued that the income of respondent no.1/husband is not sufficient to even pay maintenance of Rs.20,000/­ per month to each of the respondents. It is argued that appellant no.1 is working and is gainfully employed and 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.

19. Ld. Counsel for the respondents has further argued that appellant 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 respondents has CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 6 of 10 further argued that appellant no.1 was also earning before marriage and since she is capable of earning, therefore, she is not entitled to claim any maintenance from respondent no.1.

20. Ld. Counsel for the respondents has also argued that appellant no.1 is an income tax payee and is having PAN card in her name. Appellant 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 respondents has also argued that all the allegations made by the appellant/wife in the complaint, are false.

21. Ld. Counsel for the respondents has further argued that respondent no.1 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 respondent no.1.

22. Ld. Counsel for the respondents has further argued that Ld. Trial Court has not taken into account the income of the appellant/wife. The appellant/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 CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 7 of 10 argued that income of the respondent/husband has been severely affected due to the spread of COVID­19.

23. After hearing arguments and going through the record, I am of the opinion that a perusal of the record shows that it is admitted case of the both the parties that minor daughter is living with her mother/appellant no.1 at the house of respondent no.2 (father of respondent no.1) and the entire responsibility of the educational expenses and other expenses is also being borne by her father and relatives since the appellant no.1 is not presently working. The respondents have not filed anything on record to prove that the appellant no.1/wife is gainfully employed or has any income to sustain herself. In any case, it is the responsibility of the respondent no.1 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.

24. The contention of Ld. Counsel for respondents 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 CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 8 of 10 earning.

25. Though the appellant/wife has prayed for enhancement of the maintenance amount, I am of the opinion that the amount awarded by Ld. Magistrate is well reasoned and according to the income assessed by her and is sufficient to maintain the same standard of living and to maintain the complainant and the daughter born from the wedlock. 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. Needless to say that the appellant will be at liberty to move appropriate application for enhancement of maintenance, if there is any change of circumstances.

26. It is not disputed that the appellant/wife is well qualified and she has no other responsibility except to maintain herself and her daughter. She should also try to find a job for herself and should not waste her talent sitting idle at home.

27. 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 accordingly upheld. The CA No. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 9 of 10 appeal is hereby dismissed.

28. 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.

29. 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. 89/20 Abha Kamra & Anr. v. Mohit Kamra & Anr. Page 10 of 10