Delhi District Court
Pushpender Singh Sirohi vs Ms. Sonu Sirohi @ Ayesha Malik on 26 March, 2011
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE03, SAKET COURTS, NEW DELHI
C.A. 20/10
Pushpender Singh Sirohi ............. APPELLANT
Vs.
Ms. Sonu Sirohi @ Ayesha Malik .........RESPONDENT
AND
C.A. 21/10
Ms. Sonu Sirohi @ Ayesha Malik ......... APEELLANT
Vs.
Pushpender Singh Sirohi .......... RESPONDENT.
ORDER
Both these two appeals are being decided together by this single order as both of them emerge out of the same order dated 5.7.10 passed by Smt. Veena Rani, Ld. M.M Mahila Court, South whereby the application for interim maintenance filed by the petitioner/applicant wife Sonu Sirohi in a complaint under Section 12 of the Protection of Women from the Domestic Violence Act, 2005 had been dismissed being without merit.
Both the husband and wife have preferred separate appeals against the said order.
Pushpender Singh Sirohi Vs. Sonu Sirohi 1/7 In the appeal filed by the appellant/husband Pushpender Singh Sirohi, the main grounds taken for appeal are that the Ld. Trial Court had erred in appreciating the facts brought on record by the appellant/husband since the respondent wife had rendered him homeless despite the fact that he owned two properties. The main arguments of the appellant/husband involve three properties, (1) Bearing No. D-138, Sector-40, Noida (2) Property No. 1201, ATS, Greens Village, Sector-93A, Noida and (3) Property No. 1083, ATS, Green Village, Sector-93A, Noida.
As per the averment of the appellant/husband, he had constructed the Property No. D-138, Sector-40, Noida on the pressurization of the respondent wife and they had shifted to that property after the birth of the children in 1996 since the respondent was not willing to reside with his parents at R.K. Puram. It is stated in the appeal that the respondent has now entered into the other property belonging to the appellant/husband bearing No.1201, ATS, Green Village, Sector-93A, Noida from where the appellant/husband was earning a rent of Rs.60,000/- per month. This act of the respondent entering into this property has caused financial loss to the petitioner/husband. So far as the third property No. 1083, Noida is concerned, as per the averment of the petitioner/husband in the pleadings, the father of the respondent wife wanted to purchase this property and had requested for Rs.11 lacs. The appellant had agreed to make the payment of this amount subject to the condition that he is made a co-sharer in the property but to his surprise the property was purchased by the father of the respondent wife in the name of his wife himself and the respondent. It is stated that the Ld. Trial Court had not appreciated the fact of financial loss of rent to the petitioner/husband nor considered the fact that the respondent/wife had 50% share in the property No. 1083, Noida. It is also stated that the respondent wife after filing this complaint under Section 12 of the Protection of Women from Domestic Violence Act Pushpender Singh Sirohi Vs. Sonu Sirohi 2/7 had misused the General Power of Attorney with respect to the appellant's property bearing No. D-138, Sector-40, Noida worth around Rs.3 crores by selling the property to her own mother. The date of the General Power of Attorney as well as the Agreement to Sell clearly indicate the nature of the transaction. It is stated that after declaring house No. D-138, Sector-40, Noida as her matrimonial home, the respondent wife unauthorizedly entered in the other property of the appellant/husband bearing No. 1201, Noida. It is stated that none of these facts have been considered by the Ld. Trial Court nor any finding to that effect had been mentioned in the order. It is stated that the Trial Court had dealt with interim maintenance issues without dealing with other issues which are relevant for deciding the maintenance issues as all the issues interconnected. It is stated that the Ld. Trial Court had mentioned various facts which are against the averments made by the appellant in the written statement. It is stated that the respondent was extorting around Rs.1,10,000/- per month till July, 2009 when the appellant/husband learnt her unauthorized entry into the property No. 1201, Noida from where he was earning Rs.60,000/- per month as rent. Hence, the appellant had reduced the monthly payment of Rs.40,000/- which was commensurate to the loss of rent caused to the appellant and thereafter since December 2009, the appellant/husband had stopped paying the monthly payment of Rs.40,000/- as well since the respondent wife had misused the General Power of Attorney relating to the property No. D-138, Sector-40, Noida by transferring the property to her mother. It is stated that the Trial Court had dismissed the interim maintenance issues presuming as if the appellant/husband is still paying Rs.80,000/- per month to the respondent which factual error would be highly prejudicial to the interest of the appellant and the respondent. Hence, it is prayed that the order dated 05.07.10 be set aside and instead an order dismissing the interim maintenance application in the light of above facts be passed.
In the appeal filed by the appellant wife, it is stated that the Pushpender Singh Sirohi Vs. Sonu Sirohi 3/7 respondent/husband had stopped paying anything towards expenses of the appellant and her children since July 2009 and had even stopped paying for the children education expenses. It is stated that since 1997, the respondent/husband in the past was paying Rs.1,20,000/- which would vary but was never less than Rs.1 lac and which amount was directly transferred to the bank account of the appellant wife. After shifting to Bangalore, the amount was reduced to Rs.80,000/-. It is stated that the appellant is doing an E-Commerce business and hardly any income to look after three children whereas the monthly income of the respondent is not less than Rs.5 to 6 lacs. It is stated that company where the respondent is working had been paying Rs.60,000/- for educational expenses but the respondent has even stopped paying for the school fees. It is stated that the respondent is a Captain in the Merchant Navy for the last 20 years and has an NRI status. He is receiving substantial salary abroad in foreign currency from employer (Gearbulk) being a multinational company. It is stated that the Ld. M.M has overlooked the fact that the respondent/husband has stopped even paying the maintenance of Rs.80,000/- to the appellant since June, 2009. Ld. M.M has also failed to consider the affidavit filed by her wherein she has disclosed her income and details of her bank account and the fact that she has not been paying any amount since filing of the Domestic Violence petition. It is stated that as per the Income Tax Return, the income of the respondent/husband was not less than Rs.17 lacs annually. Hence, it is prayed that the order dated 5.7.10 be set aside and instead an order granting maintenance of Rs.1,20,000/- be passed in favour of the appellant.
In the replies to the appeals, both the parties have reiterated the averments of their respective pleadings as well as the appeal.
I have heard the submissions of the counsel for the parties and have gone through the documents filed by both the sides. I have also seen the order passed by the Ld. M.M. Pushpender Singh Sirohi Vs. Sonu Sirohi 4/7 The object of the PWDV Act, 2005 is to protect the women from being victim of the domestic violence and to prevent the occurrence of domestic violence in the society and most specifically to protect the women against any violence that is occurring within the family. There is no denial of the legal proposition that a husband is under obligation to maintain his wife and the children. The maintenance is dependent upon the means of the parties, the respective needs and the capacity of the husband to pay and it is settled proposition that the maintenance should be given to the wife as commensurate to the status of the parties and to the life styles, in which the wife was living alongwith the husband, prior to the separation or litigation.
As per the admitted position in this case, the gross income of the appellant/husband is around Rs.1,63,600/- per month and his net salary is around Rs.1,16,136/-. As is revealed from the pay-slip filed on record by the petitioner/husband, he is getting Rs.60,000/- towards education allowance for the children. The income of the appellant/husband is also revealed from Form No. 16 filed on record by the appellant/husband for the year 2008-09 and 2009-10. It is also admitted by the appellant/husband in his pleadings that the appellant wife was withdrawing around Rs.1,20,000/- per month of his salary for the year 1997-2005. He has also admitted that this amount was reduced to Rs.80,000/- when the appellant wife had entered into the house of the appellant/husband which was given on rent thereby causing loss to the tune of Rs.60,000/- per month which the appellant/husband was getting through rent of the said property. It is also admitted by the appellant/husband that the amount was later on reduced to Rs.40,000/- as she misused the General Power of Attorney and thereafter he stopped making the payment of any amount towards the maintenance to the wife since December, 2009. Hence, the appellant/husband has himself admitted that now he is not making any payment of the maintenance amount to the wife, which fact is reiterated by the appellant wife in her affidavit filed on record. However, the said affidavit was Pushpender Singh Sirohi Vs. Sonu Sirohi 5/7 not considered by the Ld. M.M at the time of passing the order. In the said affidavit, the appellant wife had even disclosed her income as that Rs.35,000/- annually stating that she is working with a company called Quest International as an Consultant but she does not have any fixed salary as it is a referral marketing business and she is doing E- Commerce Business at a very nominal remuneration and attached statement of account of her bank. The appellant/husband has nowhere disputed the averment of the appellant wife. He neither stated that the appellant wife is earning nor contested the amount of earning as disclosed by the wife. However, this affidavit and the documents were not considered by the Ld. Trial Court while passing the impugned order, though, the affidavit was filed much prior to the date of announcement of the order leading to the wrong observations by the trial court in the order that the appellant wife has not revealed what amount she is earning.
It is not the case of the appellant/husband that the House No. 1201, ATS, Greens Village, Sector-93A, Noida in which the appellant wife had entered, is generating any income to her. So far as the ownership of any property by the appellant wife is concerned, the said submissions are matter of record and shall have an impact when the concerned court shall pass an order on merits with regard to the residence or otherwise on the application of the appellant wife. So far as the maintenance part is concerned, since the appellant/husband was already giving maintenance to his wife and children and since he is also getting the amount towards education of his children and since he himself has admitted to have stopped making payment of any amount to the wife, in my considered opinion, seeing the status of the husband who was earlier in Merchant Navy and now earning in lacs, and also keeping in view the status of the parties, respective needs of the parties as well as earning of the appellant wife, capacity of the appellant/husband, personal expenses of the appellant/husband, I grant an interim maintenance at the rate of Rs.75,000/- per month to the petitioner/applicant Pushpender Singh Sirohi Vs. Sonu Sirohi 6/7 wife, from the date of filing of the application. Order dated 5.7.10 passed by the Ld. MM is hereby set aside with the above observations. Both the appeals are disposed of with above observations. Copy of this order be placed in the appeal file of the other case. Appeal files be consigned to the Record Room. TCR be returned back to the concerned court. No observations made in this order shall affect the merits of this case.
Announced in the open court, (RENU BHATNAGAR)
Dated: 26.03.11 ASJ-3/ SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Pushpender Singh Sirohi Vs. Sonu Sirohi 7/7