Delhi District Court
Smt. Sushma Tripathi vs Sh. Jyotirmaya Tripathi on 7 April, 2010
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IN THE COURT OF MS. SHUCHI LALER,
MM (MAHILA COURTS), KKD DELHI
CASE NO. 40/03
IN THE MATTER OF
Smt. Sushma Tripathi
w/o Sh. Jyotirmaya Tripathi,
d/o Sh. Shivmani Tiwari
r/o H. No. B3/344, Nand Nagari,
Delhi - 93. .......... petitioners
Versus
Sh. Jyotirmaya Tripathi
s/o Sh. P.C. Tripathi
r/o RZ33, QExtension,
Uttam Vihar, Uttam Nagar,
Delhi - 110 059. .......... respondent
Date of institution : 05022001
Date on which the judgement has been reserved : 07042010
Date of judgement : 07042010
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE
ON BEHALF OF THE PETITIONER
JUDGEMENT
Vide this judgement, I shall decide the petition U/s 125 Cr.P.C. for grant of maintenance moved by petitioner wherein it is stated that petitioner got married to the respondent as per Hindu Rites and Customs. It has been alleged that the respondent and his family members treated the petitioner : 2 : with utmost physical and mental cruelty and the respondent and his family members created terror to the petitioner to keep her mouth silent and due to the said fear, the respondent and his family members obtained the signatures of the petitioner on the blank stamp paper and also compelled the petitioner to write a suicide note in the diary of respondent, however, after getting the same, the respondent and his family members threatened the petitioner to face dire consequences if she disclosed anything either to police or her parents. It is alleged that the respondent and his family members stated to the applicant that nobody can do anything of them, if they would kill the petitioner since, his father is having certificate from mental hospital of being mentally disordered and the law or any police official cannot do anything of a mental person and the respondent and his family members tried to kill the petitioner by giving her to drink the poison and after cutting her right arms nerves. The petitioner has made a complaint before the Women Cell at Seelampur against the respondent, fatherinlaw, motherinlaw and sisterin law. It is averred that the respondent and his family members have detained the original school certificate alongwith the articles and istridhan with the motive to cause losses and damages by misusing the same and they have refused to return the articles, jewellery, istridhan etc. despite of several : 3 : demands. It is stated that the petitioner is not employed anywhere and she has no movable or immovable property and is totally dependent upon the mercy of her parents as the respondent and his family members have thrown her out of the matrimonial home. It has been claimed that the respondent is a qualified person having degree of Software Engineer in Computer from F Tech Institute at Vikas Puri, New Delhi and is engaged in a reputed concern and is drawing salary of Rs.10,000/ p.m. and he also work as Computer Operator in other firm as part time basis and earn not less than Rs.10,000/ p.m. The father of the respondent is employed as Agriculture Research Officer in Pusa Institute at Pusa Road is drawing Rs.20,000/ p.m. and the respondent is the only son of his parents and is successor all of the assets are in the name of his parents including built up house approximately 100 sq. yards and as such maintenance amount @Rs.10,000/p.m. for the petitioner is prayed.
2. Reply has been filed wherein the factum of marriage has been admitted. The respondent has stated that present petition is liable to be dismissed as the petitioner has not come to this court with clean hands and she has suppressed material facts. The respondent has stated that the petitioner has received all the jewellery articles / istridhan from the : 4 : respondent before Dowry Cell and he has filed a petition for restitution of conjugal rights u/s 9 of H.M. Act and the same is pending adjudication. It is alleged the petitioner has herself withdrawn from the society of the respondent and has refused to join the company of the respondent. The allegations of demand of dowry and cruelty have been traversed by the respondent. The respondent has denied that he is qualified person having degree of Software Engineer in Computer from FTech Institute at Vikas Puri, New Delhi and is engaged in a reputed concern and is drawing salary of Rs.10,000/ p.m. The respondent has also denied that he also works as Computer Operator in other firm on part time basis and earns not less than Rs.10,000/ p.m. The respondent has claimed that he is unemployed and he has no source of income and is totally dependent on his parents and is also under treatment of the doctor and the fees of the doctor incurred by his parents. The respondent has stated that the petitioner is educated lady and giving tuitions in her parental home and running a beauty parlor shop at her parental home and her monthly income is more than Rs.3,000/ p.m.
3. The petitioner has preferred replication wherein the assertions to the contrary have been controverted and has reiterated the facts stated in the petition.
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4. The petitioner has examined herself as PW1 and has stated on 0206 1994, her marriage was solemnized with the respondent as per Hindu Rites & Customs and in the said marriage, her parents have incurred approximately Rs.1 lakh, out of which Rs.31,000/ was given to the respondent in cash and at the time of gona ceremony, the parent of the petitioner had spent Rs.80,000 to Rs.90,000/. The petitioner has stated that her inlaws and nand used to instigate her husband and the respondent used to beat the petitioner. PW1 has deposed that the respondent and his family members used to demand Rs.1 lakh and the respondent specifically demanded a motorcycle and the nand demanded ONIDA colour T.V. when the petitioner showed her inability to fulfill the demand, the respondent and his family members asked the petitioner to leave the matrimonial home. It is alleged that on 19071997, the respondent continued beating the petitioner from 9 p.m. to 5 a.m. and forced her to write a suicide note. PW1 has testified that she was physically and mentally tortured at her parental home and on 07072000, the respondent and his family members after beating the petitioner had thrown her out of the matrimonial home and had obtained her signatures on blank stamp papers. The petitioner made a complaint at CAW Cell. The petitioner has stated that she is unemployed and is dependent upon : 6 : her parents. She has testified that the respondent is a Software Engineer in Computer from FTech Institute at Vikas Puri, New Delhi and is drawing a salary of Rs.10,000/ p.m. and he is also taking tuition, hence, the total income of the respondent is claimed to be Rs.20,000/ p.m. In her cross examination, the petitioner has admitted that her checkup was conducted by a doctor of Lady Harding Medical College. PW1 admitted that the respondent had filed a petition u/s 9 of Restitution of Conjugal Rights against her, however, the same was withdrawn by the respondent. PW1 denied the suggestion that the respondent and his family members never harassed her for demand of dowry. PW1 also denied the suggestion that she is giving tuitions to school going children wherefrom she is earing Rs.2,000/ to Rs.3,000/ p.m.
5. In rebuttal, the respondent has examined himself as RW1 and has tendered his evidence by way of affidavit, which is Ex.RW1/A. In support of his oral testimony, the respondent has relied upon the document Ex.PW1/R1 to Ex.PW1/R8. In his cross examination, the respondent admitted that he did a Computer Operating Programme from FTech Institute, Vikas Puri. The respondent has stated that he did not apply for recruitment as computer operator. He worked as salesman in Raja Garden Auto Care for 1997 till : 7 : 2000 and was getting a salary of Rs.1,800/ p.m. The respondent denied the suggestion that the petitioner has left his company due to the physical and mental torture given by the respondent and his family members.
6. I have heard the Ld. Counsels for parties and perused the record with their assistance.
7. In order to decide the claim of maintenance the following are required to be proved:
a. relationship with the respondent Wife/child/father/mother as the case may be, b. the ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, c. the factum of neglect on behalf of the respondent, d. incapability of petitioner to survive on her own and capability of respondent to make provision for the maintenance.
(a) The respondent has not disputed the relationship in his reply and the same stands admitted.
(b) & (c) As regards the grounds for residing separately, the petitioner / PW1 has deposed that she was harassed, humiliated and tortured in furtherance of demand of Rs.1 lakh, motorcycle and ONIDA colour T.V.
: 8 : PW1 has testified that on 07072000, the respondent and his family members after beating the petitioner had thrown her out of the matrimonial home. The respondent denied the allegations of demand of dowry and has deposed that petitioner has withdrawn from his society and refused to join the company of the respondent. The respondent had filed a suit for Restitution of Conjugal Rights against the petitioner and when the maintenance was awarded to the petitioner, the respondent stopped pursuing the aforesaid case. A case u/s 498A/406/34 IPC has been registered against the respondent and his family members. The respondent has not come up with any material substantive for residing separately except claiming that the petitioner left the company of the respondent without any sufficient reason. The respondent has not claimed to have made any arrangement for the maintenance of the petitioner during the period of separation. In view of the above, it is established on record that petitioner has sufficient reasons to reside separately from the respondent and the respondent has neglected to maintain the petitioner.
(d) As regards the incapability of petitioner to survive on her own, the petitioner has deposed that she is unemployed and has no movable or immovable property in her name and is totally dependent upon her parents.
: 9 : The respondent has claimed in his reply that petitioner is giving tuitions to the school going children and is running a beauty parlor shop at her parental home, the said plea taken by the respondent is not duly established as the respondent did not mention the name of any student, who must be receiving tuitions from the petitioner. The respondent has also not specified the name and address of the alleged beauty parlor. Further in his cross examination that the respondent admitted that he has not placed on record any document to show that the petitioner is running beauty parlor or tuition centre as claimed by him. In view of the above, the factum of petitioner being incapable to survive on her own stands proved. On the other hand, the respondent has not come with any material substantive that he is unable to command the income. The petitioner / PW1 has deposed that respondent is a qualified person having degree of Software Engineer in Computer from F Tech Institute at Vikas Puri, New Delhi and is engaged in a reputed concern and is drawing salary of Rs.10,000/ p.m. and he also works as Computer Operator in other firm on part time basis and earns not less than Rs.10,000/ p.m. In his reply the respondent denied possessing degree of Software Engineer from FTech Institute and claimed that he is unemployed person, totally dependent upon his parents. In his cross examination, the respondent : 10 : stated that he completed his B.Sc. in the year 1997. The respondent also admitted in his cross examination that he did a training course of computer operator from FTech Institute. The respondent stated in his cross examination that he joined Auto Care Petrol Pump at Raja Garden in the year 19981999 as a Salesman and was getting salary of Rs.1,800/ p.m. and for 1520 days the respondent had joined the Super Market, Daily Needs at Malviya Nagar as Salesman at a monthly salary of Rs.5,000/ p.m. Thereafter, he left the job on his own without any resignation and writing. The respondent has stated that with effect from 31012009, he is doing the work of vegetable seller at C1, Ram Nagar, Om Vihar, Uttam Nagar, Delhi. Though, in his reply and in his examination in chief, the respondent has claimed himself to be unemployed and also denied the factum of having degree of Software Engineer in Computer from FTech Institute, Vikas Puri, Delhi, in his cross examination, the respondent admitted that he did the Computer Training Course from FTech Institute. The respondent himself admitted in his cross examination his employment with Auto Care Petrol Pump and Super Market Daily Need, Malviya Nagar, however, neither the employer nor any salary slip has been filed on record by the respondent. The respondent has taken contradictory stand in his reply to the present petition : 11 : and in his evidence. Presently, the respondent has claimed in his cross examination that he is doing the work of vegetable seller and has opened a shop of vegetable at C1, Ram Nagar, Om Vihar, Uttam Nagar, Delhi. The respondent did not disclose his income from the said job of selling vegetables. Further, the respondent did not prefer to examine any neighbour shop keeper to prove the present alleged business of sale of vegetables. From the above discussion, it is apparent that the respondent is not disclosing his true employment and true income to this court so as to escape his liability. As the respondent has himself admitted in his cross examination that he is B.Sc. pass and has done Computer Training Course from FTech Institute, having regard to the educational qualification of the respondent, status of the parties and the responsibilities and liabilities, the petition is accordingly decreed with direction to respondent to make an arrangement @ Rs.500/ per month in favour of petitioner from the date of filing of the present petition till 24092001 (The present petition was filed on 05022001 and at the time of institution of the present petition, a Magistrate could not award maintenance allowance more than Rs.500/, hence, an amount of Rs.500/ p.m. has been awarded in favour of the petitioner from the date of filing of the present petition till 24092001) and from 24092001 till the petitioner : 12 : remarry, the respondent is directed to make an arrangement of Rs.3,000/ p.m. in favour of the petitioner. The amounts if received by the petitioners subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 07042010 MM/MAHILA COURTS