Delhi District Court
Mohd. Swahaleen vs Anamta on 10 October, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 57/2022
CNR No.: DLCT01-006785-2022
Mohd. Swahaleen
S/o Late Waziruddin
R/o H. No. 1853, Lal Darwaja
Bazar Sirkiwalan, Lal Kuan, Delhi-110006
..... Appellant
VERSUS
Anamta
W/o Mr. Mohd. Swahaleen
R/o H. No. 1834, Lal Darwaja
Bazar Sirkiwalan, Lal Kuan, Delhi-110006
..... Respondent
Criminal Appeal No. 108/2022
CNR No.: DLCT01-009236-2022
Anamta
W/o Mr. Mohd. Swahaleen
R/o H. No. 1834, Lal Darwaja
Bazar Sirkiwalan, Lal Kuan, Delhi-110006
..... Appellant
VERSUS
Mohd. Swahaleen
S/o Late Waziruddin
R/o H. No. 1853, Lal Darwaja
Bazar Sirkiwalan, Lal Kuan, Delhi-110006
..... Respondent
Date of Institution : 22.04.2022 / 10.06.2022
Date of Arguments : 30.09.2022
Date of Judgment : 10.10.2022
JUDGMENT
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1. The criminal appeals under Section 29 of 'The Protection of Women From Domestic Violence Act, 2005' (Hereinafter referred to as 'DV Act') are directed against order dated 31.03.2022 (In short 'the impugned order') in complaint case vide CC No. 5159/2019 titled as 'Anamta vs. Mohd. Swahaleen & Ors.' whereby Ld. MM / Mahila Court-01 (Central), Tis Hazari Courts, Delhi (In short 'the trial Court') directed the respondent / Mohd. Swahaleen to pay interim maintenance in the sum of Rs. 7,500/- per month to the appellant comprising Rs. 5,000/- to the appellant and Rs. 2,500/- to their minor child.
2. For the sake of convenience, the parties are referred as they are impleaded in the original complaint case i.e. Anamta as 'the complainant' and Mohd. Swahaleen as 'the respondent'.
BRIEF FACTS:
3. The complainant filed an application under Section 12 DV Act, inter alia, against the respondent for reliefs under Section 18, 19, 20, 21 and 22 DV Act alongwith an application under Section 23 (3) DV Act for interim maintenance in the sum of Rs. 15,000/- per month on averments that the complainant was married to the appellant on 31.10.2015. They were blessed with a male child on 28.10.2016. The complainant alleged that the respondent subjected her to physical and mental cruelty for bringing insufficient dowry. There are allegations and counter-allegations. The appellant is residing with her parents since 10.03.2019.
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4. The case of the complainant is that she has no source of income and she is dependent upon her parents for maintenance. The respondent is earning about Rs. 25,000/- per month from his avocation as 'salesman' at Meena Bazar, Jama Masjid, Delhi. The respondent is also earning additional amount of Rs. 10,000/- from his own business. The respondent has no other liability except to maintain the complainant and the minor child. The complainant claimed maintenance in the sum of Rs. 20,000/- per month. In reply, the respondent stated that he is a 'salesman' in a private shop and earning Rs. 7,000/- per month. In 'income and expenditure' affidavit, the respondent stated that he is incurring expenses of rent in the sum of Rs. 12,000/- per month. He stated that the complainant is a 'skilled ladies tailor'.
5. The impugned order is as under:
"Heard on the issue of interim maintenance application filed by the complainant praying for interim maintenance.
Perusal of the record shows that vide order dated 01.09.2017, Ld. Court of Sh. Dharmesh Sharma, the then Principal Judge, THC, Delhi granted Rs. 5,000/- per month and Rs. 2,500/- was granted to their son as interim maintenance. But, the matter was amicably resolved and was withdrawn on 26.03.2018. Therefore, without going into the merits of this case, at this prima-facie stage, considering the facts and circumstances as available on record, this Court deems it fit to grant Rs. 7,500/- per month as maintenance to complainant; Rs. 5,000/- for complainant & Rs. 2,500/- for their son."
6. Feeling aggrieved and dissatisfied with the impugned order, the complainant and the respondent preferred the criminal appeals.
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7. Ld. Counsel for the complainant contended that the trial Court passed the impugned order in a mechanical manner without due application of judicial mind. He contended that the trial Court reiterated order dated 01.09.2017 passed by Ld. Principal Judge, Tis Hazari Courts, Delhi in Petition under Section 125 Cr.P.C. He contended that price index of day to day necessities has risen. He contended that the minor child is studying in 3rd standard and the complainant is incurring expenses on his education in the sum of Rs. 3,000/- per month. He contended that the trial Court wrongly assessed interim maintenance on the basis of minimum wages. He contended that the respondent is a 'salesman' and he is capable to pay an amount to Rs. 15,000/- per month as interim maintenance. He contended that the trial Court did not consider that an amount of Rs. 7,500/- is insufficient for maintenance of the complainant and the minor child. He contended that the trial Court should have directed the respondent to pay, at least, an amount of Rs. 15,000/- as maintenance to the complainant and the minor child. He contended that the trial Court did not grant interim maintenance since date of filing of the application.
8. Ld. Counsel for the respondent contended that the appeal filed by the complainant is barred by time. He contended that the trial Court did not consider that the complainant left matrimonial home without any reasonable excuse and therefore, she is not entitled to interim maintenance.
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9. Ld. Counsel for the respondent contended that the trial Court did not consider that the complainant studied upto 10th standard and she is a 'skilled ladies tailor' and earning around Rs. 15,000/- per month. He contended that the said order dated 01.09.2017 was an ex-parte order. He relied on judgments in Sanjay Bhardwaj vs. The State & Ors., 2010 (118) DRJ 385, Damanpreet Kaur vs. Indermeet Juneja & Ors., 2013 (1) JCC 306 and Mamta Jaiswal vs. Rajesh Jaiswal, 2000 DMC 170. He contended that the respondent's mother is suffering from several age related ailments and she requires continuous medication. He contended that due to pandemic, the respondent's employer has not increased his salary. He contended that the trial Court wrongly assessed monthly income of the respondent on minimum wages. He contended that the trial Court did not consider status and income of the respondent. He relied on judgment in Manju Singh vs. State of U.P. & Anr., Cr. Rev. No. 2048/2002 decided by Hon'ble Allahabad High Court on 07.11.2016 that a wife, who deserted her husband willingly without sufficient reasons and not ready to live with him, is not entitled to maintenance, even if she had no known source of income. He relied on judgment in Prasanta Hazra vs. Ranju Hazra, C.R.R. No. 2264/2010 decided on 19.09.2022 that a wife who is not willing to reside in her matrimonial home is not entitled to maintenance. He relied on judgment in S.R. Vediappan vs. S.P. Ramalingam, A.S. (SR.) No. 34779/2017 decided by Hon'ble Madras High Court.
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10. On examination of the impugned order, it is seen that the trial Court passed the impugned order on the basis of order dated 01.09.2017 passed by Ld. Principal Judge, Family Court, Central, Tis Hazari Courts, Delhi, in MT No. 191/2017, in a petition under Section 125 Cr.P.C. instituted by the complainant. The trial Court did not consider the pleadings of the parties nor their 'income and expenditure' affidavits and passed a reasoned order. The impugned order was solely premised on the said order dated 01.09.2017. The impugned order is a mechanical, unreasoned and cryptic order. This Court was inclined to remand the case for fresh arguments and order on application for interim maintenance. However, this Court refrained itself from undertaking the said exercise keeping in view the fact that the present proceedings arisen from an order pertaining to an application for interim maintenance in an application filed under DV Act on 15.05.2019.
11. As regards contention of Ld. Counsel for the respondent regarding delay in filing of the appeal by the complainant, it can be stated that the impugned order was passed on 31.03.2022 and the complainant filed the appeal on 10.06.2022, there is delay of only 6 days in filing of appeal and therefore, such delay cannot be considered as inordinate delay. Accordingly, delay in filing of the appeal by the complainant is condoned.
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12. As regard reliance of Ld. Counsel for the respondent on the judgment in Manju Singh vs. State of U.P. & Anr. (supra), it can be stated that in that case, the wife stayed only one day in her matrimonial home and she left her husband without sufficient reason.
13. In Nakul vs. Padmini, (2016) SCC OnLine Bom 10624, Hon'ble High Court of Bombay held, as under:
"9. The contentions of the petitioner that the respondent wife has deserted him without any reasonable cause and therefore, she is disentitled to maintenance, cannot be considered in great details at the stage of determination of interim maintenance."
14. In the present case, there is prima facie material disclosing commission of domestic violence. The complainant was residing separately since 24.07.2006 leading to filing of a complaint dated 29.05.2017 with CAW Cell, PS Kamla Market, Delhi and thereafter, petition under Section 125 Cr.P.C. vide MT No. 191/2017 on 01.09.2017. However, the complainant joined the respondent on 31.03.2018 on his assurance that he would maintain the complainant and the minor child. However, the respondent physically assaulted the complainant leading to lodging of NCR No. 2/19 dated 11.03.2019 and a complaint dated 08.04.2019. Therefore, there is sufficient material on record disclosing prima facie commission of domestic violence.
15. The complainant has no source of income. She is dependent upon her mother and brother for maintenance. She is maintaining the minor child. She is not gainfully employed.
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16. A mere statement that the complainant is a 'skilled ladies tailor' is not sufficient to deny maintenance to her. Capacity to earn and actual earning are two different things.
17. This proposition of law is laid down in the case of Kanupriya Sharma vs. State & Anr., (2019) 261 DLT 349 by the Hon'ble High Court of Delhi that 'actual earning' or 'qualified and capable of earning' are two different things.
18. In Shailja & Anr. vs. Khobbanna, (2018) 12 SCC 199, Hon'ble Supreme Court of India 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.
19. The respondent is legally and morally liable to maintain the complainant and the minor child. He has no other responsibility except to maintain the complainant and the minor child. He cannot avoid his liability to maintain the complainant and the minor child.
20. Admittedly, the respondent is employed as a 'salesman' in Meena Bazar, Jama Masjid, Delhi. The complainant stated monthly income of the respondent as Rs. 35,000/- per month whereas the respondent is claiming his monthly income as Rs. 7,000/- per month. He relied on a salary certificate issued by his employer. No reliance can be placed on such a self serving document.
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21. In Anju Garg and Another vs. Deepak Kumar Garg, 2022 SCC OnLine SC 1314, Hon'ble Supreme Court of India held, as under:
"10.....The Family Court had disregarded the basic canon of law that it is the 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 statute.....
22. In Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705, Hon'ble Supreme Court of India 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 doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the 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.
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."
23. In Bhuwan Mohan Singh vs. Meena & Ors., (2015) 6 SCC 353, Hon'ble Supreme Court of India 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."
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24. In Masud Alam vs. Mariam Bibi & Anr., 2014 SCC OnLine Cal 22627, Hon'ble Calcutta High Court 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."
25. In Chander Parkash vs. Shrimati Shila Rani, AIR 1968 Del 174, Hon'ble 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 maintain them according to the family standard. It is for such able-bodied person to show to the 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....."
26. The respondent is a able bodied person. He is not suffering from any ailment or disability preventing him from earning his livelihood. He cannot be permitted to contend that he is earning Rs. 7,000/- per month. His monthly income must be assessed on the basis of minimum wages as applicable to unskilled workers in Delhi. The monthly income of the respondent is assessed at Rs. 16,506/-.
27. Therefore, the interim maintenance in the sum of Rs. 7,500/- granted by the trial Court is just and reasonable and it is neither insufficient nor excessive.
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28. However, the complainant is entitled to interim maintenance since the date of filing of the application under Section 12 DV Act. In Rajnesh vs. Neha & Anr, Crl. Appeal No. 730/2020 decided on 04.11.2020, Hon'ble Supreme Court of India 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."
CONCLUSION:
29. The criminal appeal, vide Crl. Appeal No. 57/2022 titled as 'Mohd. Swahaleen vs. Anamta' is dismissed.
30. The criminal appeal, vide Crl. Appeal No. 108/2022 titled as 'Anamta vs. Mohd. Swahaleen' is partly allowed and the impugned order is modified, as under:
"The respondent / husband is directed to pay interim maintenance in the sum of Rs. 7,500/- per month comprising Rs. 5,000/- per month to the complainant / the wife and Rs. 2,500/- per month to the minor child from the date of filing of the application (15.05.2019) till disposal of the petition on 10 th day of English calendar month by way of transfer to the account of the complainant / the wife. The arrears of interim maintenance be cleared in 6 Equal Monthly Instalments (EMIs) w.e.f. 01.11.2022."
Crl. Appl. No. 57/2022 Mohd. Swahaleen vs. Anamta Page No. 11 of 13 A copy of judgment alongwith trial Court record be sent back to trial Court. Appeal files be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2022.10.10 17:03:59 +0530 Announced in the open Court SANJAY SHARMA-II on this 10th October, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appl. No. 57/2022 Mohd. Swahaleen vs. Anamta Page No. 12 of 13 Mohd. Swahaleen vs. Anamta CNR No.: DLCT010067852022 Crl. Appeal No. 57/2022 10.10.2022
Proceedings convened through Video Conferencing.
Present : Mr. Naved Rajput, Advocate for the appellant.
Mr. Mukesh Sharma, Advocate for the respondent.
Vide separate judgment, the criminal appeal filed by the appellant is dismissed. The appeal file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.10.10 17:04:11 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 10.10.2022 Crl. Appl. No. 57/2022 Mohd. Swahaleen vs. Anamta Page No. 13 of 13