Delhi District Court
Amit Malik vs Monika Malik on 8 August, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH DISTRICT) & ASJ/I/C (SOUTH & SOUTHEAST):
SAKET NEW DELHI
Criminal Appeal No. 106/2012
ID No.: 02406R0120362012
Amit Malik
s/o late Sh. Amrit Malik
R/o Flat No. 1055, Apna Villa Housing Cooperative Society
Plot No. 23, Sector 10, Pappankalan,
Dwarka PhaseI, New Delhi. ..... Appellant
Versus
Monika Malik
D/o late Sh. Amrit Lal Chopra
R/o B272, (First Floor),
Greater KailashI,
New Delhi 110048. ..... Respondent
Instituted on: 19.05.2012
Judgment reserved on: 03.08.2012
Judgment pronounced on : 08.08.2012
J U D G M E N T
1. This appeal has been preferred under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Domestic Violence Act"), assailing the order dated 12.04.2012 passed by Ms Pooja Talwar, Metropolitan Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 1 of 27 Magistrate, Mahila Court, SouthEast District (hereinafter referred to as "the Magistrate"), whereby the application of the respondent herein for interim relief under Section 23 of Domestic Violence Act was allowed and the appellant was, interalia, directed to pay maintenance allowance in the sum of Rs. 20,000/ (twenty thousand) per month to the respondent for personal and household expenses from the date of filing of the petition till its disposal on merits.
2. On notice, the respondent has appeared and contested the appeal by way of a formal reply to which rejoinder has also been filed by the appellant.
3. I have heard Sh. Sunil Malhotra, advocate for the appellant and Sh. C. L. Dhawan, advocate for the respondent at length. During the course of arguments, both sides have taken me extensively through the record.
4. While resisting the proceedings under Domestic Violence Act, the appellant had raised the issue of jurisdiction and maintainability. His grievance in appeal is that his objections, though noted, were not addressed/considered by the Magistrate.
5. The appeal raises certain core issues concerning the manner in which the application for interim relief under Domestic Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 2 of 27 Violence Act is required to be handled. The cognate issues include the question as to whether the court is to proceed on the "presumption" that a case for "domestic violence" exists or whether it must examine (at least tentatively) on basis of pleadings and material to conclude that a "prima facie" case of domestic violence is made out before granting interim relief. To put it simply, the crucial question is as to whether it is proper to exercise jurisdiction to grant interim relief even if the undisputed facts/material tend to show that "prima facie" the version of the petitioner woman is of doubtful credibility.
6. Before coming in grips with the issues raised, certain background facts, as emerge undisputed from the pleadings/documents, need to be taken note of.
7. The appellant (respondent before the Magistrate) and the respondent herein (petitioner before the Magistrate) were married to each other as per Hindu rites and customs on 01.09.1992. Apparently, the parties married each other of their own free will and volition, since the said event was preceded by a love affair. For sake of convenience, they would hereinafter be referred to as "the husband" and "the wife"
respectively.
Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 3 of 27
8. It is admitted by the wife that after marriage, she started living and cohabiting with the husband in a portion of 3storied property described as A20, Mahendru Enclave, New Delhi. Nothing turns on the dispute about the specific floor of said house as the basic fact remains that Mahendru Enclave house was used by the parties after their marriage as their "shared household", within the meaning of the expression defined in Section 2(s) of Domestic Violence Act. It is not disputed that the property in Mahendru Enclave belonged to predecessorin interest (father) of the husband and his brother (Anurag Malik).
9. As a result of cohabitation between the parties, two children took birth, namely son Master Sagar Malik (born on 11.06.1993) and daughter Ms. Chhavi Malik (born on 05.02.1997). Both the children are students and have been living with the wife, at least ever since the parties separated.
10.It is not disputed that the father of the husband died in 2001. Prior to his death, he had been engaged in a business in the shop no. 9, Khurshid Market, run in the name and style of "A to Z Overseas" with godown in premises no. 1469/70, Gali Chuleywali, Sadar Bazar. It appears that after the father had passed away, the husband on one hand and his brother Anurag Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 4 of 27 Malik with their mother Ms. Kamlesh Malik on the other became involved in dispute over the estate left behind by him. It is not disputed by the wife that the said controversy led to, in her own words, "a prolonged cantakerous litigation". It has been shown by the husband on the basis of documents that the said dispute came to be resolved ultimately through an arbitration award, the result whereof was that the husband inherited the shop (with business run therein) while the house in Mahendru Enclave went to the share of his brother Anurag Malik. It appears that the husband felt dissatisfied and challenged (unsuccessfully) the validity of the award before the Hon'ble High Court. It is his submission that he had taken the matter even to Hon'ble Supreme Court of India but could not secure any relief.
11.It is own case of the wife that, in the wake of the above mentioned developments, the husband with his family (including the wife and children) came to be forcibly evicted through court bailiff from the shared household ("matrimonial home") in Mahendru Enclave in March, 2006.
12.Mr. Amrit Lal Chopra, the father of the wife, admittedly owned a residential property described as B272, Greater Kailash Part Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 5 of 27 I, New Delhi. It is admitted case on both sides that after being evicted under court orders from Mahendru Enclave property in March, 2006, the parties with their children shifted residence to the said Greater Kailash PartI property of the father of the wife. It is undisputed that they lived together in the Greater Kailash house of the father of the wife from March, 2006 onwards, at least till January, 2009. The wife insists the parties separated on the night of 12.08.2009. As per her own pleadings (before the family court), the Mahendru Enclave house ceased to be the "matrimonial home" upon forcible eviction in March, 2006.
13.It is undisputed for both sides that after he left residence in Greater Kailash house, the husband initially shifted elesewhre and later set up residence in Flat No. 1055, Apna Villa Housing Cooperative Society, Plot No. 23, Sector10, Pappan Kallan, Dwarka PhaseI, New Delhi, which is a property belonging to his mother Mrs. Kamlesh Malik. It is not disputed that the husband uses the said property in Dwarka as a tenant under his mother.
14.The litigation between the parties began in the end of 2009. It was preceded by a legal notice dated 03.10.2009, served by the husband on the wife. In the said legal notice, the husband Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 6 of 27 attributed desertion calling her upon to join him in the matrimonial home, referring to her refusal to do so with (her) insistence that he must live as "Ghar Jawai" in her parental home to which he was "not ready". The wife admittedly did not send any reply to the legal notice.
15.The husband preferred (on 11.12.2009) petition under Section 9 of Hindu Marriage Act, seeking restitution of conjugal rights, which case is pending before the family court at Rohini. The petition has been contested through written statement dated 19.03.2010 filed by the wife, which document constitutes her first version as to her matrimonial grievances. She denied that it was she who had deserted the husband and instead claimed that it was the husband who had abandoned/deserted her and the children on the night of 12.08.2009 "for reasons best known to him". She referred to the "misconduct and behaviour" of the husband towards her and the children "particularly after 12.08.2009". She expressed disinclination to join the husband mainly on the ground that there was "no guarantee" that the mother of the husband would not repeat "what she had done earlier" (referring to eviction from the matrimonial home at Mahendru Enclave), her grievance against the husband Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 7 of 27 essentially being that he was "unable" to provide a "stable"
home.
16.After submitting written statement on 19.03.2010, the wife (claiming she had no independent source of income of her own) moved an application on 10.11.2010 under Section 24 of Hindu Marriage Act, seeking, interalia, maintenance pendente lite in the sum of Rs. One Lakh per month. Certain pleadings in para 5 of the said application need to be quoted in extenso:
"5. The petitioner on the other hand is a man of means who has completely shirked his responsibilities and obligations towards his wife and children. ............. During the 18 years of marriage, the Petitioner had been paying all expenses relating to household, school fees, tuitions, medical etc. which were completely stopped after he abandoned/deserted the Applicant and the children on 12.8.2009........"
17. The application under Section 24 of Hindu Marriage Act is pending adjudication before the Family Court.
18.The petition under the Domestic Violence Act was preferred by the wife on 29.10.2010 before the Metropolitan Magistrate, to seek various reliefs including maintenance allowance to the tune of Rs. 98,000/ per month. It set out, in AnnexureI, the Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 8 of 27 facts on the basis of which the wife alleges "domestic violence". In this narration, she claims to have been "living miserable life since beginning of her marriage", having been subjected to immense physical, mental and emotional abuse caused by the husband, who is of "very volatile, violent and erratic temperament" rendering her life under "constant fear" of physical harm. She terms the husband "as thoroughly uncooperative", who would cause harassment of all kinds relating to money, even though he possessed sufficient means. She would allege that the husband used "abusive language" and "tried to use physical force". She states that the husband had forced her to finance the litigation (involving his brother over the family property), having taken a sum of Rs. Six lacs on this account from her father. She alleges that the husband had "for no apparent reason walked out of the matrimonial home on 12.08.2009" deserting/abandoning her and the two children. She has alleged that on 17.07.2010, she with the children had gone to meet him to make him understand about his responsibilities/ obligation, but he became abusive and violent and physically assaulted/manhandled her in a public place in which regard a complaint was "lodged" with SHO police station Connaught Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 9 of 27 Place.
19.It appears from the submissions of both sides that after filing the petition under Domestic Violence Act, the wife also lodged FIR (no. 04/12) under Sections 498A/406 IPC PS Greater Kailash. Admittedly, the allegations in the said FIR (still pending investigation) are on the same lines as in the petition under Domestic Violence Act. It appears that on the application of the husband, he has been granted anticipatory bail vide order dated 18.05.2012 passed by Ms. R. Kiran Nath, Additional Sessions Judge1 (South), New Delhi.
20.The petition under Section 12 of Domestic Violence Act was accompanied by application under Section 23 seeking interim relief, interalia, in the nature of maintenance allowance. Noticeably, in the main petition, as also in the application for interim relief, the wife would not make any averment about the income of self. She would restrict her pleadings mainly to the expenditure she was incurring and the extent of financial support required by her.
21.The husband, in his reply, while denying having subjected the wife to domestic violence, interalia, claimed that the wife was possessed of sufficient income from various sources, she being Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 10 of 27 much more educated then him, with income to the tune of Rs. 65,000/ per month, pointing out that she is owner of flat no. 338, Madangir, New Delhi from which she earns rental income in the sum of Rs. 10,000/ per month. He stated that she was working as Administrative Manager at a salary of Rs. 15,000/ from a private educational institute named Fast Track Kids School, Greater Kailash PartI, New Delhi. According to him, the wife was also working as an agent of Bharati Axa Life Insurance Company with income in the sum of Rs. 30,000/ per month minimum by way of commission. He claimed his own income is in the range of Rs. 12,000/ per month and that he is under heavy debt to the tune of Rs. 20 lacs.
22.It is only in the rejoinder that the wife conceded ownership (50%) of the flat in Madangir, claiming it is on rent @ Rs. 6,000/ per month out of which half comes to her as her share. She stated her service with private educational institute had been terminated in the month of November, 2009 and presently she was jobless. She denied that she had been working as agent of Bharati AXA Life Insurance Company or that she had any income from commission, stating she was "currently" not associated with the said company.
Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 11 of 27
23.Thus, in the case at hand, the wife alleges before the Magistrate that she has been subjected to domestic violence since beginning of marriage, her focus being on economic abuse. The husband denied the case in toto and has attributed motive to the wife for her unreasonable refusal to cohabit.
24.The Magistrate in the impugned order skirted around the issues raised by the husband and observed that it is "moral" and "legal" duty of the husband to maintain the wife and proceeded to decide on the quantum of such allowance. The remark about "moral" duty was not proper as Court is not enforcing the same. The "legal" duty of husband to maintain is subject to corresponding obligations of the wife, satisfaction about compliance with which requires some judicial scrutiny which has not been done.
25.The 'Objects and Reasons' leading to the legislation in the Domestic Violence Act makes it clear that it was enacted to "provide a remedy in the civil law" in as much as the then existing civil law would not address the phenomenon of domestic violence in its entirety. The proceedings under the Domestic Violence Act are initiated through application under Section 12, prior to which there is a provision for a Domestic Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 12 of 27 Incident Report to be prepared through the protection / police officer in terms of Section 9. The rules framed under the Domestic Violence Act provide for the format of Domestic Incident Report in "FormI". Para 8 of the said Form clarifies that the police officer assisting in the domestic incident report, may either advice for initiation of criminal action (in the event of an offence under the criminal law having been found to be committed) or in case the aggrieved woman is not willing to initiate such criminal proceedings for her to pursue "civil remedies".
26.When a petition under Section 12 of the Domestic Violence Act is filed, the Magistrate is generally expected to issue notice under Section 13 of the Domestic Violence Act. The format of the notice for appearance under Section 13(1) of the Domestic Violence Act is prescribed to "FormVII" in the Rules under the Domestic Violence Act. The said format would show that the respondent is to be required to appear either "personally" or "through a duly authorised counsel". The notice also administers caution that in case of failure, the proceedings would be set "exparte" against the noticee.
27.The procedure to be followed for such purposes undoubtedly is Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 13 of 27 referable to the provisions of Code of Criminal Procedure, 1973 in terms of Section 28 of Domestic Violence Act. But then, it has to be borne in mind that the remedies available under the Domestic Violence Act include an order for payment of maintenance. From this perspective, these proceedings are akin to those of Section 125 of Code of Criminal Procedure. Even under the provisions of Section 125 Code of Criminal Procedure, the respondent (husband/father) is not treated as an accused. In case the husband/father does not appear to answer in the proceedings under Section 125, they are also set exparte. There is a provision available under the law for the exparte proceedings to be set aside and for the respondent to be allowed to take part in the proceedings thereafter on he showing good cause for the earlier defaults in appearance.
28.From all above angles, it is abundantly clear that the proceedings under the Domestic Violence Act before the learned Magistrate are essentially in the realm of civil law. It is only in the event of breach of the orders passed by the Magistrate that an offence stands constituted within the mischief of Section 31 of the Domestic Violence Act which, per Section 32, is cognizable and nonbailable offence. Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 14 of 27
29.It is well settled that the Domestic Violence Act does not create any new right of maintenance allowance in favour of the wife (aggrieved person). In taking this view, I draw strength from observations of Hon'ble High Court in para 4 of the judgment in Sanjay Bhardwaj & ors Vs. State & anr. [171(2010) DLT 644] to the following effect:
"4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing law. While, the Act specifies the duties and function of protection officer, police officer, service providers, Magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. "
30.Reference to maintenance allowance is included as one of the several components occurring in Section 20 which provides for "monetary reliefs". The language employed in Section 20 makes it clear that the monetary relief which can be granted in Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 15 of 27 favour of the wife is with the objective of facilitating her "to meet the expenditure incurred and loss suffered" by the aggrieved person "as a result of the Domestic Violence".
31. The counsel for the wife has relied on Kusam Lata Sharma Vs. State & anr. [2011(126) DRJ 298] to contend that the wife is entitled to come as an aggrieved person under the Domestic Violence Act because she had lived with the husband in a domestic relationship. Relying on Surinder Pal Chander Vs. Jasbir Kaur [2012 (1) CCCases (HC) 14] and Preceline George Vs. State of Kerala [2012(1) RCR (Criminal) 280] it has been submitted that the deprivation of maintenance allowance by the husband constitutes "Domestic Violence", in that it is covered by the definition of "economic abuse". He also referred to Rakesh Vs. Rajnesh @ Manto [2012(1) RCR (Criminal) 289] to submit that the pendency of the petition for restitution of conjugal rights cannot come in the way of an order being passed under the Domestic Violence Act.
32.While there can be no quarrel with the above propositions of law, it also needs to be borne in mind that it is only the "violence" which is committed in a shared house hold that can give rise to a cause of action under Domestic Violence Act. Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 16 of 27 Laying down law to this effect, Hon'ble High Court in the case of Vijay Verma Vs. State NCT of Delhi & anr. [2010 (118)DRJ 520] has observed as under: " This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved person against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such act of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 17 of 27 be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence.
Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away.
Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal Laws. Domestic violence is a violence which is committed when parties are in domestic relationship, sharing same house and sharing all the household goods with an opportunity to commit violence." (emphasis supplied)
33.It is clear from the bare reading of the statute that the provision for maintenance of the aggrieved person which can be part and parcel of the monetary relief under Domestic Violence Act would be primarily such allowance as can be claimed under Section 125 Cr.P.C. or any other law for the time being in force; the expression "any other law" here indicative of rights under the personal law.
34.The undisputed background facts noted earlier clearly show that the wife has already invoked the jurisdiction of the competent civil court (the Family Court) to seek maintenance allowance under the personal law (Section 24 of Hindu Marriage Act). Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 18 of 27 Against the said backdrop, it would not be proper for the court of Magistrate exercising jurisdiction under this special law (Domestic Violence Act) to usurp the jurisdiction of the civil court to grant the monetary relief inclusive of maintenance allowance on the principles governing the personal law. Thus, what was essentially pressed before the learned Magistrate through the petition under Domestic Violence Act was grant of maintenance allowance as would be available under Section 125 Cr.P.C.
35.In this view of the matter, the submission of the husband that the wife is not entitled to receive such allowance for maintenance or interim maintenance because she was refusing to live with him "without any sufficient reason", cannot be brushed aside as irrelevant since that would be an important issue to be addressed in deciding on her entitlement [Section 125( 4) Cr.P.C.]
36.Generally speaking, the relief is granted by the Court after affording opportunity to both sides to adduce evidence. It is legitimate expectation of every litigant that she or he shall not be condemned unheard; particularly so, in a situation where the respondent (husband here) seeks to contest the case of the Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 19 of 27 petitioner (wife) giving rise to questions of fact. All the more so in the special jurisdiction exercised under the Domestic Violence Act, wherein an order, even an interim order under Section 23, entails grave and serious consequences, every breach rendering it a penal offence under Section 31. It is well settled that in order to secure interim order, the petitioner must show a good prima facie case to exist. The same principle would apply with equal force to the case of the wife invoking the special jurisdiction under Domestic Violence Act.
37.From the above perspective, I am unable to accept the contention of the counsel for the wife that the issue as to whether or not she had a good case of Domestic Violence, would need to be gone into only "after the trial" or at the time of final adjudication. If that view were to be adopted, it would unjustly expose the respondents in such proceedings to possibility of unfair orders being secured. It is in this context that the impugned order suffers from the vice of arbitrariness and,thus, fails to pass the muster.
38.The counsel for the respondentwife has relied on Karamchand & Ors Vs. State NCT of Delhi & anr. [211(2) CCCases (HC) 403] in support of his contention to above effect. But Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 20 of 27 then, the said view was taken by Hon'ble High Court in the facts and circumstances of the case where the interim order had been passed on a "prima facie view" of the matter. The contention canvassed here is for there being no need to have "prima facie" satisfaction, before granting interim relief. This approach cannot be accepted as it would amount to "patent illegality or the arbitrariness resulting in miscarriage of justice", a result which would need interference.
39.There is, thus, no doubt that if the undisputed facts or documents on record render the version of the petitioner woman incredible, the Magistrate ought not exercise the jurisdiction to grant interim relief since, in such factsituation, it would not be possible to conclude that prima facie a good case for Domestic Violence has been made out.
40.The husband in these proceedings has raised a number of issues, questioning the version of the wife as "figment of her imagination". His submissions include the following:
(a) It is inherently impossible/incredible for the marriage (preceded by love affair) of over 18 years (blessed by birth of two children), with not a simple complaint throughout, to have been miserable or punctuated by domestic violence; Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 21 of 27
(b) In her written statement in answer to the prayer of the husband for restitution of conjugal rights, the wife did not attribute, not even remotely, she having been subjected to Domestic Violence;
(c) The notice preceding the petition for restitution of conjugal right having gone unanswered, total absence of allegations of "domestic violence" in the written statement filed by the wife in that case conjointly show that till that stage her sole grievance against the husband concerned his failure to resist eviction from the Mehendru Enclave House, rather than on account of any temperamental issue, not the least due to any episode of domestic violence;
(d) The written statement in answer to the petition under Section 9 Hindu Marriage Act itself shows that the wife had refused to join the society of the husband on account of distrust towards the motherinlaw, whom she holds responsible for unceremonious ouster from the Mahendru Enclave, which cannot be treated as "sufficient reason" to justify the claim of separate maintenance from the husband who had done all that he could do to resist the forcible eviction;
(e) The insistence of the wife that the husband lives as "Ghar Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 22 of 27 Jawai" is unreasonable and shows her unconcern for his sensibilities;
(f) The allegations in the petition under Domestic Violence Act are too general and groundlessly made, in absence of specific instances and against the history of cohabitation in harmony over 18 years without a single complaint, and thus not worthy of credence;
(g) Even the Sessions Court admitting the husband to anticipatory bail has observed in the order dated 18.05.2012 that the husband cannot be "penalized before trial" in view of the fact that the marriage had subsisted for 20 years without any complaint whatsoever to any of the authorities;
(h) The allegations about the incident of 17.07.2010 in the area of Connaught Place (about 11 months after the parties admittedly separated) is unsubstantiated as it has been admitted during the course of hearing that the wife is unable to show she having actually "lodged" a complaint with the police station;
(i) The wife had admitted in para 5 of the application under Section 24 Hindu Marriage Act that the husband had, through out, discharged all his obligations to provide the financial support till 12.08.2009 and, thus, there is no case of deprivation Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 23 of 27 of economic or financial resources constituting "economic abuse" alleged, or made out, with reference to the period of cohabitation in the shared household.
41.The above mentioned submissions are of import/substance. In my considered opinion, the learned Magistrate could not have exercised jurisdiction in the facts and circumstances of the case without considering the same in the light of undisputed facts/documents on record. The impugned order from this perspective suffers from the defect of nonapplication of mind and, thus, is liable to be set aside.
42.Before concluding, some illustration of erroneous impression created/gathered with regard to earnings of the two spouses need to be given, since they further vitiate the order.
43.As noticed earlier, while approaching the Family Court under Section 24 Hindu Marriage Act, the wife had claimed to be without any source of income of her own. She was silent on this score in the main petition under Section 12 of Domestic Violence Act and also in the application for interim relief. It is only when the husband pointed out certain sources of income that in the rejoinder she admitted certain earnings. It must be added here that one is not commenting on the sufficiency or Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 24 of 27 otherwise of the admitted earnings. What is being highlighted is the effort of the wife to suppress material facts.
44.As observed by Hon'ble High Court in Sanjay Bhardwaj (supra), "we are living in an era of equality of sexes". The husband has claimed that the wife is quite educated (if not more than him) and capable of earning well of her own. The wife was expected to share with the court her income in entirety. Rather than doing so, she withheld facts. Though she would disclose in the rejoinder that she was no longer connected with Bharti Axa Life Insurance Company, a document relied upon by her at the time of hearing shows the said agency was terminated only on 31.03.2011. The husband has shown on record a document (form submitted by the wife to take out insurance policy on 09.01.2010), wherein she would claim her income to be in the range of Rs. Four lacs per annum. The copies of income tax return submitted by the wife for the period 20062007 shows that she had declared the income in the region of Rs. 2.26 lacs. The wife would need to explain these documents properly, particularly against the backdrop of her effort to claim total absence of any financial resources.
45.In the impugned order, the learned Magistrate has assessed Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 25 of 27 income of the husband at Rs. One lac per month, based on the profit and loss account submitted by him before the Income Tax Authority. As observed by Hon'ble High Court in the case of Amit Khanna & anr. Vs. Priyanka Khanna & ors.[2010 (119) DRJ 182], mere allegations of the wife without concrete proof cannot suffice. As pointed out by the counsel for the husband, the learned Magistrate has totally misread the document in the nature of the profit and loss account (for period ending with 31.03.2011) of the business of the husband. She would take the figure of Rs. 28,23,780/ as representing profit from sales. But this very document shows that the husband had declared his net profit to be Rs. 2,49,850/.
46.It has been submitted by the counsel for the husband, the house in Madangir held in the name of the wife (jointly with another) was acquired , at least partly on the basis of finance obtained from State Bank of India by the husband. The copy of the loan application submitted (of which the wife has been the beneficiary) shows that the husband had declared his income to be gross Rs. Three lac per annum. The submission of the husband is that a person approaching a financial institution for loan would not generally understate his income. Crl. Appeal No. 106/12 Amit Malik Vs. Monica Malik Page 26 of 27
47.The impugned order having been found suffering from the defect of nonapplication of mind is, thus, set aside. The appeal stands allowed.
48.The trial court record along with copy of this judgment be sent back.
49.File of the appeal be consigned to Record Room.
Announced in open Court today
on this 08th day of August, 2012 (R.K. GAUBA)
ASJ/I/C (South & South East)
Saket/New Delhi
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