Delhi District Court
Rakesh vs The State (Nct Of Delhi) on 10 January, 2023
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI
CA No.75/2022
CIS No. DLNE01-003151-2022
In the matter of:
Rakesh
S/o Sh. Rajinder
R/o C-292, MCD Flats, 1st Pusta
Shastri Park, Delhi
............ Appellant
Versus
1. The State (NCT of Delhi)
and
2.Smt. Pooja
W/o Sh. Rakesh
R/o B-173, EDMC Staff Colony,
New Usmanpur, Shastri Park,
Delhi-110053 ...........Respondents
Date of registration of appeal: 01.10.2022
Date when appeal was received by this Court: 10.10.2022
Date of conclusion of arguments: 07.01.2023
Date of pronouncement of order: 10.01.2023
Memo of appearance:
Sh. Lovkesh Kumar, Ld. counsel for the appellant.
Ms. Kiran Dharam, Ld. counsel for the respondent.
JUDGMENT:
1. Appellant-husband has preferred the present appeal against the respondent No.2-wife (hereinafter referred to as 'the Digitally respondent' for convenience as respondent No.1 being State is a signed by PRAVEEN PRAVEEN KUMAR proforma party) under Section 29 of the Protection of Women KUMAR Date:
2023.01.10 11:05:14 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 1/9 from Domestic Violence Act, 2005 (hereinafter referred to as 'the D.V. Act') assailing the interim order dated 07.06.2022 passed by the Ld. MM (Mahila Court), North-East, Karkardooma Courts, Delhi (hereinafter referred to as 'the Trial Court') under Section 23 of the D.V. Act in CC No.V-346/2018 titled as " Pooja Versus Rakesh and Ors." whereby Trial Court has directed the appellant to pay an interim maintenance of Rs.8,000/- per month to the respondent and their son.
BRIEF FACTS:
2. The respondent herein filed an application under Section 12 of the D.V. Act against appellant for reliefs under Section 18, 19, 20 and 22 of the D.V. Act along with an application under Section 23 of the D.V. Act for interim maintenance @ Rs.10,000/- per month.
3. The parties admittedly got married as per Hindu rites and ceremonies on 21.12.2012 at UP. A male child was born on 20.04.2015 from the wedlock. The respondent was harassed and ill-treated by the appellant and her in-laws for bringing insufficient dowry. The respondent has levelled allegations that she was subjected to domestic violence by her in-laws and appellant. The same have been denied by the appellant. The allegations and counter allegations levelled by the parties against each other are skipped, as same are not relevant for deciding the instant appeal.
4. The respondent has sought relief for interim maintenance claiming that appellant is employed as Safai Karamchari in MCD and is getting Rs.35,000/- per month as salary. The appellant, in his reply, has claimed that he got the job of sweeper in MCD Digitally signed by after the death of his father on compassionate ground. He has PRAVEEN PRAVEEN KUMAR KUMAR Date:
claimed that he is getting salary of Rs.12,000/- per month. 2023.01.10 11:05:30 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 2/9
5. Both the parties have filed their respective income affidavits in compliance of directions given by the Apex Court in judgment-Rajnesh Versus Neha, Crl. Appeal No.730/2020, decided on 04.11.2020. In her income affidavit, respondent has stated that appellant is working as Safai Karamchari in MCD and he is earning Rs.16,000/- per month. He is residing in a government accommodation. He has ancestral properties including agricultural land in Ghaziabad, UP and 100 sq. yards plot in village Saha Nagar, Loni, Ghaziabad, UP. He has no liability except to maintain the respondent and their son.
6. In his income affidavit, the appellant has claimed that he is working with EDMC, Seempuri, Delhi as casual sweeper and is getting salary of Rs.13,800/- per month. ARGUMENTS:
7. I have heard Sh. Lovkesh Kumar, Ld. counsel for the appellant and Ms. Kiran Dharam, Ld. counsel for respondent.
8. Ld. counsel for the appellant has contended that appellant has got job of sweeper in MCD in place of his deceased father on compassionate ground as casual worker. He is getting salary of about Rs.14,000/- per month. According to him, there was an oral family settlement pursuant to which appellant is paying 1/3 rd of his salary i.e Rs.4,000/- per month to his younger brother and his family. Secondly, it is contended that the appellant is not residing in any government accommodation as no government accommodation has been alloted to him. It is contended that appellant is residing in a rented accommodation at Shastri Park, Delhi since 2010 and is paying Rs.5,000/- per month towards rent to his landlord. Thirdly, it is contended that the Family Court Digitally signed by in petition under Section 125 Cr.P.C has granted Rs.4,000/- per PRAVEEN PRAVEEN KUMAR KUMAR Date:
month as ad interim maintenance to respondent and their child. 2023.01.10 11:05:45 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 3/9 The appellant is regularly depositing the said amount in the bank account of the respondent. Fourthly, it is contended that the statement of account of the appellant shows that around Rs.13,000/- per month is being credited in his account as salary. The appellant could not produce his salary certificate before the Trial Court but now he is placing the same on record. As per Ld. counsel, the Trial Court did not take into consideration the actual salary received by the appellant as well as the other factors and has wrongly assessed income of the appellant to the tune of Rs.16,506/- per month. Fifthly, it is contended that appellant is not in a position to pay an amount of Rs.8,000/- per month to respondent as he is spending money on his treatment as well. Lastly, it is contended that respondent is earning Rs.10,000/- per month as she is a ladies tailor. It is prayed that the order passed by the Trial Court be set aside.
9. On the other hand, Ld. counsel for the respondent has contended that there is no infirmity in the order passed by the Trial Court. It is contended that both parent of the appellant have expired during Corona pandemic. The respondent has no source of income. She has to take care of her 8 years old child, who is in her custody. Secondly, it is contended that the appellant has no liability except to maintain the respondent and their son. The appellant is falsely claiming that he has to maintain his brother's family on account of an oral family settlement. It is contended that the brother of the appellant is hale and hearty and he has means to support his family. Thirdly, it is contended that mother of the appellant is also working in MCD and is earning Rs.50,000/- per month. Lastly, it is contended that the appellant is not residing in any tenanted accommodation. After the order Digitally signed by PRAVEEN PRAVEEN KUMAR passed by the Trial Court, the appellant has prepared a false rent KUMAR Date:
2023.01.10 11:05:59 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 4/9 agreement dated 16.07.2022 showing that he is paying rent of Rs.5,000/- per month. It is contended that the documents, which were not produced before the Trial Court, cannot be considered by this Court being the Appellate Court. It is contended that the respondent has no source of income and she is not gainfully employed. It is prayed that the appeal be dismissed. PRECEDENTS:
10. It has been held in the judgement of our High Court of Delhi reported as Kanupriya Sharma Vs. State, (2019) 261 DLT 349, that 'actual earning' or 'qualified and capable of earning' are two different things.
11. In Shailja vs. Khobbanaa, (2018) 12 SCC 199, the Apex court has held that whether the appellant is 'capable of earning' or whether she is 'actually earning' are two different things and merely because the appellant is capable of earning is not a sufficient reason to reduce the maintenance.
12. In Anju Garg vs. Deepak Kumar Garg, 2022 SCC OnLine SC 1314, Apex court has held as under:
"10...The Family Court had disregarded the basic canon of law that it is sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statue..."
13. In Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705, the Apex court has held as under:
"14...Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not Digitally signed by doing well. These are only bald excuses and, in PRAVEEN PRAVEEN KUMAR KUMAR fact, they have no acceptability in law. If the Date:
2023.01.10 11:06:15 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 5/9 husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.
xxx xxx
17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning."
14. In Bhuwan Mohan Singh vs. Meena, (2015) 6 SCC 353, the Apex court has held as under:
"2...In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able- bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."
15. In Masud Alam vs. Mariam Bibi, 2014 SCC OnLine Cal 22627, Calcutta High Court has held as under:
"...Merely because a person is claiming that he has no income that is no ground to exonerate him from the liability of maintaining his wife. In such a situation if it is found the husband is an able-bodied person and has capacity to earn then in that case he shall be bound to maintain his wife."
16. In Chander Prakash vs. Shrimati Shila Rani, AIR 1968 Del 174, our High Court of Delhi held as under:
"7. But this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to earn enough to be able to Digitally signed by maintain them according to the family standard. It PRAVEEN PRAVEEN KUMAR is for such able-bodied person to show to the KUMAR Date:
2023.01.10 11:06:29 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 6/9 Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child...".
17. The respondent is entitled to interim maintenance from the date of filing of the application under Section 12 of the D.V. Act. In Rajnesh (Supra), Supreme Court of India has held as under (pg. 49):
"It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant."
ANALYSIS AND FINDINGS:
18. I have gone through the file. The photocopy of salary certificate filed by the appellant before this Court is 'undated'. It is settled law that the documents not filed before the Trial Court cannot be considered by the Appellate Court. The appellant cannot derive any benefit from the order dated 24.11.2021 passed by the Ld. Principal Judge, Family Court, North East, Karkardooma Courts, Delhi as vide said order an ad interim maintenance was granted @ Rs.4,000/- per month and the matter was adjourned for arguments on interim maintenance application. Thus, interim maintenance application was not finally decided on merits by the Ld. Principal Judge, Family Court on 24.11.2021. The relevant portion of the said order is reproduced herein-
Digitally
signed by
PRAVEEN
PRAVEEN KUMAR
below: KUMAR Date:
2023.01.10
11:06:43
+0530
"...Ld. counsel for the petitioner presses CA No.75/22 Rakesh Vs. The State & Anr. Page 7/9 for ad interim maintenance stating that the parents of the petitioner has expired and she has one child to support and who is admitted to the school.
In the facts and circumstances, ad interim maintenance is fixed at Rs.4,000/- per month. Respondent shall pay the maintenance by depositing the same in the bank account of the petitioner by the end of every month.
Bank account details given to the respondent.
Put up on 19.01.2022 for arguments on interim maintenance."
19. Thus ad interim maintenance @ Rs.4,000/- per month was granted till the disposal of the interim maintenance application.
20. A mere statement that the respondent is a 'skilled ladies tailor' is not sufficient to deny maintenance to her. Appellant has failed to bring on record any document to show that respondent is a skilled ladies tailor and/or she is earning handsome amount. He has also not filed any photograph(s) to show that respondent is doing tailoring job, as alleged. Capacity to earn and actual earning are two different things. The appellant is legally and morally liable to maintain the respondent and their son. He cannot avoid his liability to maintain the respondent, who is his legally wedded wife, and their son. In the absence of any material brought on record by the appellant qua his salary, the income of the appellant has to be estimated by the Court taking into parameter of prevalent wages under the Minimum Wages Act. CONCLUSION:
21. The Trial Court has rightly assessed the income of the appellant to be Rs.16,506/- per month on the scale of minimum Digitally wages as per Minimum Wages Act and has rightly granted signed by PRAVEEN PRAVEEN KUMAR KUMAR Date:
interim maintenance of Rs.4,000/- each to the respondent and 2023.01.10 11:06:58 +0530 CA No.75/22 Rakesh Vs. The State & Anr. Page 8/9 their son. The order passed by the Trial Court calls for no interference. The appeal has no merit. Hence, the same is dismissed.
22. The observations made herein-above shall not tantamount to an expression of opinion on the merits of the case during trial. Appeal stands disposed of. Trial Court record be sent back along with copy of this judgment. Appeal file be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT TODAY i.e ON 10 th JANUARY, 2023 Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2023.01.10 11:07:10 +0530 (PRAVEEN KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS,DELHI CA No.75/22 Rakesh Vs. The State & Anr. Page 9/9