Delhi District Court
Charu Gandhi vs Pankaj Gandhi on 22 April, 2019
IN THE COURT OF SH. GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Appeal No.249/2017
CNR No.DLWT01008672017
In re:
Charu Gandhi
w/o Shri Krishan Kumar
d/o Shri Krishan Kumar
r/o 12/20, First floor(Right Side)
West Patel Nagar, New Delhi. .........Appellant
Versus
Pankaj Gandhi
s/o Shri Kishan Lal
r/o 3A/81, WEA, Karol Bagh,
New Delhi110 005.
Also at:
C/o Gandhi Electronics,
Stall no. 96, Gaffar Market,
New Delhi110 005. .......Respondent
Date of filing of appeal : 16.09.2017
Date of hearing final arguments : 22.04.2019
Date of pronouncement of judgment : 22.04.2019
C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 113
JUDGMENT:
1. This appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') is filed against order dated 05.08.2017 and 26.09.2016 passed by the Ld. M. M. (Mahila Court)03, West in complaint No.5550659/16 under Section 12 of the Act whereby the application of the appellant seeking directions to the respondent to pay the school fee of the children was dismissed and the respondent by way of interim maintenance directed the respondent to pay Rs. 10,000/ per month in favour of the children from the date of filing of the petition.
2. The brief background relevant for the disposal of the appeal is as follows:
2.1 The appellant/wife filed the complaint under Section 12 of the Act against the husband (i.e. the respondent herein), alongwith inlaws wherein she leveled allegations of domestic violence against them and claimed different reliefs under the Act.
The petitioner is the legal wedded wife of the respondent and the marriage was solemnized between them on C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 213 13.04.2000 and twins were born, out of the wedlock. The petitioner/appellant leveled various allegations regarding harassment and dowry demand and accordingly the petition was filed.
The respondent denied the allegations of the petitioner alleging the illicit relation of the appellant/petitioner.
After consideration of the documents on record and assessment of the income of the parties, the Ld.Trial court vide order dated 26.09.2016, awarded interim maintenance @10,000/ per month in favour of the children mainly for their expenses towards their school fees. The petitioner was denied maintenance on the ground that she had sufficient means to maintain herself. The income of the appellant/petitioner was assessed @23,000/ per month, whereas, the income of the respondent/husband was assessed Rs. 2.6 lakhs approximately.
2.2 The appellant/wife filed an application before the Ld trial court seeking direction to the respondent to pay the school fee of the children in view of the contentions/admissions of the respondent regarding meeting of the school fees expenses of the children, which was dismissed vide impugned order dated 05.08.2017, observing : C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 313 ''maintenance is a composite term which includes foods, clothing, shelter, education and other expenses. A detailed order on merits has been passed in the present case.
There is no change in circumstances and hence, the application is dismissed.'' Aggrieved therefrom, the appellant/wife has approached this court by way of this appeal.
3. The present appeal has been filed on the ground that the impugned order is illegal and suffers from irregularity and the relevant factors and documents on record have not been considered, while deciding interim compensation; the school fees paid by the respondent as admitted is not sufficient;the respondent paid the school fees for quarter 3 & 4 for the year 20162017 apart from Rs.10,000/ I./e. Interim compensation and the respondent is under moral and legal obligation to maintain the children. During the pendency of the appeal, in compliance of order dated 04.05.2019, the appellant/wife has also filed the recent fees schedule to be paid towards the school fees of the children contending the other amount towards books C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 413 and school uniforms is also needed for the children.
4. The notice of the appeal was issued to the respondent. The respondent put the appearance through his counsel and strongly opposed the appeal. The counsel for the respondent submitted that the impugned orders do not suffer from any illegality and therefore, no interference is called for.
5. I have heard the counsel for both the parties. The trial court record has also been perused. I have also gone through the written submissions filed on behalf of both the parties and considered the relevant provisions of law.
6. Section 23 of the Act empowers the court to pass various interim orders under the Act including an order of maintenance that is consistent with the standard of living to which the aggrieved person is accustomed. In order to be entitled to the grant of interim maintenance, the aggrieved person/wife must satisfy the court on two accounts. Firstly, that she is unable to maintain herself either because she has no source of income or her income is not sufficient to meet the requirements, and secondly, that the husband has neglected or refused to maintain C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 513 her despite having sufficient means.
7. It is well settled law that where the direct evidence is available before the court, the court must consider the same. The direct evidence should not be discarded merely on the basis of presumption. The court may draw the presumption in the cases where the parties are not able to produce the direct evidence regarding the existence of a certain facts. In the absence of any documentary evidence to establish the income of husband, a logical and reasonable approach would be adopted to award interim maintenance considered the status of parties, their earning capacity and the minimum income of the husband which can be reasonably inferred would be as per the Minimum Wages Act.
8. In Annurita Vohra Vs. Sandeep Vohra 110 (2004) DLT 546, it has been held that the family income should be divided equally between all the family members entitled to maintenance with one extra share being allotted to the earning spouse since extra expenses would necessarily occur.
9. Coming on to the quantum of maintenance in Dr. C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 613 Kulbhushan Kumar Vs. Raj Kumari & Others reported in (1970) 3 SCC 129, the Hon'ble Apex Court was pleased to observe that monthly maintenance of 25% of the husband's net income is reasonable.
In Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others reported in AIR 1997 Supreme Court 3397, the Hon'ble Apex Court was pleased to observe as under;
"No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions."
10. No specific reasons are required to be given for granting maintenance from the date of the order as the Hon'ble Supreme Court of India in case titled as Bhuwan Mohan Singh Vs. Meena & Others, AIR 2014 Supreme Court C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 713 2875 has dealt with this aspect and has been pleased to observe as under;
"Para No.15. While dealing with the relevant date of grant of maintenance, in Shail Kumari Devi and another v. Krishan Bhagwal Pathak alias Kishun B. Pathak, the Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001) and came to hold that even after the amendment of 2001, an order for payment of maintenance can be paid by a court either from the date of order or when express order is made to pay maintenance from the date of application, then the amount of maintenance may be paid from that date, i.e. from the date of application. The Court referred to the decision in Krishna Jain v. Dharam Raj Jain wherein it has been stated that to hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the subsection which the legislature never intended. The High Court had observed that it was unable to C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 813 read in subsection (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception. The High Court had also opined that whether maintenance is granted from the date of the order or from the date of application, the Court is required to record reasons as required under SubSection (6) of Section 354 of the Code. After referring to the decision in Krishna Jain (supra), the Court adverted to the decision of the High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. The view of the learned Single Judge of the High Court of Andhra Pradesh stating that it is a normal rule that the Magistrate would grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this Court. Eventually, the Court ruled thus:
"43. We, therefore, hold that while deciding C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 913 an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in subsection (1) of Section 125 of the Code in absence of express provision to that effect"."
11. From the pleadings of the parties, the following admitted facts emerge:
(i) that the marriage between the parties was solemnized;
(ii) that two children were born from the said wedlock which are in the care and custody of the appellant;
(iii) that both the parties are residing separately.
C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 1013
12. In this case, the appellant/wife has asserted that she is unemployed and has no regular source of income; is unable to maintain two school going children and the school fees has been enhanced which cannot be met by her. The respondent on the other hand claimed the appellant/wife is earning through rent received from the immovable properties and the respondent is not liable to make any further payment in view of the impugned order.
13. It is observed that the trial court has already assessed the income of both the parties to decide the interim compensation which is not challenged by way of present appeal at all..It is further apparent that Rs. 10,000/ was granted to the children for interim maintenance in view of the admissions of the respondent that he is paying the school fees. It is also noted that the respondent is under obligation to maintain the children and bear their school expenses and keeping in view the fees schedule of both the children it is also apparent that the amount of Rs. 10,000/ paid towards interim compensation is not sufficient to meet out the school fees of the children. It is noted that there are many other ancillary expenses towards the children like their food, clothing, books and stationary, school C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 1113 uniforms and other pocket expenses, which is being made by the appellant only as both the children are residing with her.In view of the fees schedule filed today(not denied), the total fee payable towards both the children comes to about Rs. 81,000/ each i.e. 1,62,000/(annual). Moreover, the children have also to purchase the books and school uniforms. In view of the increased and enhanced educational expenses, there appears to be change of circumstances to be considered while deciding the application for directing the respondent to pay the school fees of the children. The impugned order accordingly dismissing the application, vide impugned order dated 05.08.2017, appears to be not sustainable and the interim compensation granted needs to be revisited. In the facts and circumstances of the case and in view of the records, this court is of the considered view that Rs. 15,000/ per month (Rs. 1,80,000/ annual) is required only for the basic educational expenses of the children of the parties. The appeal is accordingly allowed. The respondent no.1 is directed to pay Rs.15,000/ per month as interim maintenance in favour of the children from the start of this academic session i.e. from April2019 till further orders/directions and disposal of the application for maintenance filed by the appellant with the petition.
C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 1213
16. Trial court record be sent back alongwith the copy of the judgment. Appeal file be consigned to the record room.
Gorakh Nath Digitally signed by Gorakh
Nath Pandey
Pandey Date: 2019.04.23 17:21:13
+0530
Announced in the open court (Gorakh Nath Pandey)
on 22.04.2019 Addl. Sessions Judge (West)
Tis Hazari Courts, Delhi.
C.A. No. 249/2017 Charu Gandhi vs Pankaj Gandhi Page No: 1313