Delhi District Court
Sanjay Singh @ Sanjay Singh Bisht vs Jyoti Jeena @ Jyoti Bisht on 27 July, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0116952015
New Case No. : 8538/2016
CA Number : 13/1/15
CC No. : 175/4/14
PS : Sarojini Nagar
U/S: : 29 of the Protection of Women
from Domestic Violence Act,
2005
Sanjay Singh @ Sanjay Singh Bisht
s/o Dulap Singh Bisht
R/o DIBER Residential Colony, Panda Farm,
Pithoragarh, Uttarakhand-262501
.................. Appellant.
Versus
Jyoti Jeena @ Jyoti Bisht
W/o Sh. Sanjay Singh @ Sanjay Singh Bisht
D/o Late Sh. Bachi Singh Jeena
R/o HPT-42, P&T Colony,
Sarojini Nagar, New Delhi-110023 ................Respondent.
Date of receipt of file in this Court : 07.07.2015
Date when arguments were heard : 14.07.2016
Date of judgment : 27.07.2016
JUDGMENT
1 By way of present appeal, the appellant/husband has challenged the CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.1/12 impugned order dated 19.05.2015 of the Ld. Trial Court in proceedings arising out of CC No. 175/4/14 titled as Jyoti Jeena @ Jyoti Bisht Vs. Sanjay Singh @ Sanjay Singh Bisht and Ors. U/s 12 r/w section 18, 19, 20, 22 of the Protection of Women from Domestic Violence Act, 2005 (in short referred to as 'DV Act') whereby the Ld. Trial Court decided the interim application of the complainant/wife u/s 23 of the DV Act directing that the complainant was entitled to maintenance at the rate of Rs. 10,000/- per month from the date of filing of the petition i.e. 15.09.2014 till she was legally entitled to receive the same or the final disposal of the present case, whichever was earlier. It was further directed that the appellant herein would clear the arrears by 31.07.2015 and the monthly maintenance shall be payable on or before 10th of each English calender month. It was further directed that the complainant/wife shall be entitled to recover rent of the said alternative accommodation on supplying of documents of rented accommodation/ rent deed and shall be entitled to Rs. 5000/- per month towards the rent of the alternative accommodation and that the water and electricity charges shall form part of the granted maintenance. It was clarified by the Ld. Trial Court in the said impugned order that the reliefs as granted were only interim in nature and would be operative till the further orders or till the decision of the case, whichever was earlier.
2. I have heard the arguments of Ld. Counsel for appellant/husband and the Ld. Counsel for respondent/wife and have carefully perused the record including Trial Court record. For the sake of convenience, the parties would be referred to as husband and wife in this order.
3. The Ld. Counsel for the appellant/husband argued that the impugned order is illegal and arbitrary and has been passed without appreciating the factual matrix of the case. He has submitted that the parties were married CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.2/12 on 03.06.2013 at Nainital, Uttarakhand according to Hindu rites and ceremonies, the marriage was consummated and no child was born out of the said wedlock. He argued that the complainant/wife alleged in the complaint case that the appellant/husband and his family members had been committing acts of domestic violence against her but the said allegations were false and motivated. He contended that the appellant had been deserted by the respondent/wife and she has filed false complaint u/s 12 DV Act, petition u/s 125 Cr.PC and a complaint u/s 498A IPC just to harass him and his family members to extort money but having no intention to reunite with the husband. He contended that the Ld. Trial Court failed to appreciate that the appellant/husband has no income due to mental illness and was even admitted at two hospitals at Dehradun and was also under treatment with IHBAS at Dilshad Garden, Delhi. He argued that the appellant is still under treatment, being a patient is at the mercy of his family members and has no source of income. He referred to the impugned order and argued that the Ld. Trial Court inadvertently erred with respect to the admission of appellant having orchards and three ancestral properties in Almora District of Uttarakhand and that the appellant had actually denied it during the course of the arguments. He submitted that the Ld. Trial Court did not record any such statement of the husband or his counsel at that time and wrongly came to the conclusion that the appellant was having the abovesaid properties. He contended that the Ld. Trial Court failed to appreciate that the wife herself deserted the husband and therefore was not entitled to any maintenance from him even though the husband has filed a petition u/s 9 of the Hindu Marriage Act for restitution of conjugal rights against his wife/respondent at Pithoragarh, Uttarakhand. He argued that the respondent was addicted to modern city life of Delhi, was interested in CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.3/12 money only and therefore wanted to live in Delhi and hence has levelled false allegations against the husband. He contended that on the one hand the Ld. Trial Court in the impugned order mentioned that the appellant was presently unemployed due to his illness and mental depression and earlier was a teacher in a private school but falsely mentioning that he had orchards and three ancestral properties in Almora, Uttarakhand wrongly assessed his income to be atleast Rs. 30,000/- per month. He argued that the appellant is suffering from mental illness, is not having any source of income being under medical treatment and as such the amount of interim maintenance granted by the Ld. Trial Court in favour of the wife was beyond the capacity of husband/appellant. He submitted that the respondent/wife is B.Tech, can get the employment immediately with less efforts and is not expected to remain idle to squeeze the husband. He contended that as per medical records the medicines prescribed to the husband are of psychosis and mental depression and not of drug addiction as wrongly stated by the Ld. Trial Court. He argued that the impugned order violates the principles of natural justice and Constitutional Rights of the appellant. He submitted that the respondent / wife has not supplied any document of rented accommodation / rent deed and no such document has also been placed on record. He thus prayed that the impugned order be set aside.
4. The ld. counsel for the respondent /wife denied the facts as mentioned in the revision petition and also as argued by the learned counsel for the appellant/ husband. She referred to the reply to the revision petition and argued that the parties got married on 03.06.2013 and at the time of marriage, the appellant and his family members cheated the respondent by deliberately concealing the facts of drug addiction of the appellant for numerous years. She contended that since marriage the respondent was CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.4/12 subjected to cruelty, mental harassment, ill treatment, sexual harassment and torture by the appellant and his family members. She contended that many times the appellant forced the complainant / wife to commit unnatural sex and on refusal was subjected to severe physical and sexual assault. She argued that even her mother in law and father in law supported her husband and the respondent / wife was forced to use her stridhan to meet day to day expenses and basic necessities. She argued that the appellant was treated with cruelty despite her due performance of duty towards her husband and in laws. She submitted that the wife/respondent looked after her husband when he was admitted in IHBAS, Delhi and State Mental Health Institute, Dehradun due to drug addiction. She submitted that the wife tried her best to save her marriage but still she was subjected to more cruelty, harassment, torture and ill treatment and therefore she made complaints against the appellants and his parents. She denied that the learned trial court inadvertently erred with respect to admission of appellant having orchards and three ancestral properties in Almora District, Uttarakhand. She submitted that in the income affidavit filed by the appellant before the learned trial court, in view of the judgment dated 12.09.2011 of Hon'ble Delhi High Court in CM(M)79/11 in the matter titled as Puneet Kaur Vs. Inderjit Singh Sawhney, the appellant / husband concealed / suppressed the fact of his drug addiction for many years from the learned trial court. She argued that the appellant was diagnosed with 'Cannabis Abuse Induced Psychosis ' i.e drug addiction. She contended that a person having drug addiction for many years, would have some sources of substantial income else he could not have been able to purchase costly drugs and further the medical records of the appellant did not show that he was medically unfit, or incapacitated to do any job or if he has any physical CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.5/12 deformity. She argued that the appellant mentioned wrong qualification, employment status and earnings in the marriage bio-data which inter alia mentioned ancestral properties and orchards. She contended that during course of arguments before the learned trial court, the appellant admitted that he has orchards and three ancestral properties in Almora District Uttarakhand, however, the same was not disclosed in the income affidavit by the appellant. She denied that the respondent voluntarily deserted the company of the appellant. She submitted that grant of interim maintenance is a measure of social justice and it has been specially enacted to protect the wife during the pendency of the proceedings, if husband and wife live together then also husband has to maintain his wife and therefore the appellant / husband is legally bound to pay interim maintenance to the respondent / wife. She contended that the learned trial court did not commit any illegality while passing the impugned order. She submitted that the respondent / wife completed her B-Tech in July, 2010, she was never in any employment after that and her education status would not adversely affect her right to get maintenance as she was neither employed prior to marriage nor after the marriage. She contended that the husband can not avoid his liability to pay maintenance to his wife on the ground of education of his wife. She submitted that right to maintenance is an incident of the status from an estate of matrimony. She also referred to the photocopy of some documents received under RTI, copy of bio-data of appellant, copy of his medical documents, copy of medical fitness certificate dated 28.06.2014 issued by the State Mental Health Institute, Dehradun qua the appellant etc. She also relied upon the Judgment dated 06.04.2015 of Hon'ble Supreme Court of India in Criminal Appeal no. 564-565 of 2015 in case Shamima Farooqui Vs. Shahid Khan and argued that if the husband is healthy, able CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.6/12 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 Cr.P.C, unless disqualified, is an absolute right. She submitted that it was also held in the judgment that the grant of maintenance to wife has been perceived as a measure of social justice by the court and that the husband can not be permitted to plead that he is unable to maintain the wife due to financial constrains as long as he is capable of earning. She further referred to the judgment dated 15.07.2014 of Hon'ble Supreme Court of India in Criminal Appeal no. 1331 of 2014 in case Bhuwan Mohan Singh Vs. Meena & Ors and submitted that in the said judgment it was also held that the wife is also entitled to lead a life in a similar manner as she would have lived in the house of her husband and that it is the sacrosanct duty of a husband to render the financial support even if he is required to earn money with physical labour, if he is able bodied. She also referred to the judgment dated 28.10.2014 of Hon'ble Supreme Court of India in Criminal Appeal no. 2310 of 2014 in case Sunita Kachwaha & Ors Vs. Anil Kachwaha and argued that proceedings under section 125 Cr.P.C are summary in nature and it is not necessary for the court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and the wife need not be gone into. She also argued that it was also held that merely because the wife was a qualified post graduate, it would not be sufficient to hold that she was in a position to maintain herself and merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. She further relied upon the judgment of Hon'ble Supreme Court of India dated 27.11.2007 in Appeal ( Crl.) 1627 of 2007 in case Chaturbhuj Vs. Sita Bai and argued that the object of maintenance is not to punish a person for his past neglect, CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.7/12 but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. She also argued that section 125 Cr.P.C is a measure of social justice and is specially enacted to protect women and children. She also referred to various other judgments of different Hon'ble High Courts to put forth the arguments that a husband can not shirk his liability to maintain his wife on the pretext that she is qualified and competent enough to earn and that husband can not claim that he was poor in order to dodge his responsibility of providing monthly maintenance to his wife. She thus argued that the impugned order does not suffer from any infirmity and the present appeal be dismissed. She also referred to some other judgments during arguments as under :
i). Judgment dated 28.07.2008 of Hon'ble Supreme Court of India in Civil Appeal no. 4666 of 2008 in case Shail Kumari Devi Vs. Krishan Bhagwan Pathak @ Kishun B.
ii). Judgment dated 16.01.2009 of Hon'ble Delhi High Court in FAO(OS) 139/2006 in case Radhika Narang Vs. Karun Raj Narang.
iii). Judgment dated 17.10.1974 of Hon'ble Supreme Court of India in case Bhagwan Dutt Vs. Kamla Devi.
iv). Judgment dated 30.05.2011 of Hon'ble Delhi High Court in RFA 511/2009 in case Narender Pal Kaur Chawla Vs.Manjit Singh Chawla.
5. As per record, the respondent / wife filed an application under Section 12 read with Section 18, 19,20 and 22 of D.V.Act against her husband/appellant along with her father in law and mother in law. One application under Section 23 of D.V. Act was also filed with the prayer inter alia directing the husband to secure the alternate accommodation for complainant / wife or to pay Rs. 10,000/- per month to her in lieu of that and CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.8/12 directing the husband and his parents to pay Rs. 15,000/- per month for her food, clothing and other basic necessities.
6. The above said application under Section 23 D.V. Act praying for interim maintenance was decided by the learned trial court vide impugned order dated 19.05.2015 wherein the learned trial court after mentioning about the income affidavits of the parties as filed in light of judgment of Puneet Kaur (supra) came to the conclusion that it could be inferred that the husband must be earning at least Rs. 30,000/- per month and assessed his salary accordingly. The ld. trial court although mentioned in paragraph no. 12 of the impugned order that the appellant / husband was presently unemployed due to his illness and mental depression, he was suffering from drugs addiction and that he has orchards and three ancestral properties in Almora District, Uttarakhand as admitted during the course of arguments by the husband though not disclosed in his affidavit of income and expenditure and that he was not suffering from any physical deformity which did not allow him to work yet assessed the salary of the husband as Rs. 30,000/- per month. The learned trial court thereafter directed in the impugned order that the complainant was entitled to maintenance at the rate of Rs. 10,000/- per month from the date of filing of the petition i.e. 15.09.2014 till she was legally entitled to receive the same or the final disposal of the present case. The learned trial court also directed that the wife shall be entitled to recover rent of the alternative accommodation on supplying of documents of rented accommodation / rent deed and that she shall be entitled to Rs. 5,000/- per month towards said rent which shall include water and electricity charges.
7. The impugned order would show that the learned trial court mentioned that the husband was presently unemployed due to his illness, mental depression and the documents would show that he was diagnosed CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.9/12 with Canabis Induced Psychosis and was suffering from drug addiction. The impugned order would further show that the learned trial court mainly relied upon the fact as allegedly admitted on behalf of the husband during the course of the arguments that he was having orchards and three ancestral properties in Almora District, Uttarakhand to come to a conclusion that he must be earning at least Rs. 30,000/- per month. The learned counsel for the husband / appellant has denied having ever made any such admission regarding the status of property before the learned trial court. The trial court record would in fact show that the husband / appellant filed his income / expenditure / properties / assets affidavit in view of judgment of Puneet Kaur (Supra) wherein he mentioned his educational qualification as M.Sc, B.Ed., present occupation as unemployed due to illness of mental / depression, past occupation particulars as teacher in private school, income as N.A and assets including immovable properties, movable properties and vehicles as N.A ( not applicable). There is also nothing on record of the learned trial court to show or even prima facie suggest that the husband / appellant was having orchards and three ancestral properties in Almora District, Uttarakhand. The copy of bio-data of the husband as filed by respondent / wife on record and as referred to by the ld counsel for the wife / respondent, although not relevant as a proof of the issue, would also in fact not show that he was having orchards and three ancestral properties at Almora, District, Uttarakhand. The mentioning of permanent address of Almora would not suggest even remotely that the husband is having said orchards or properties at Almora. The learned trial court did not record any statement of the husband regarding any such property and in the absence of any other document on record to even prima facie show that he was having orchards and three ancestral properties in Almora, should not CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.10/12 have relied upon any such alleged admission not supported by any proper document. The said alleged admission was also a very material one in the facts and circumstances of the case as it went against the trial court record and even against the income / assets affidavit as filed by the husband. The assessing of monthly income of husband to the tune of Rs. 30.000/- was absolutely not based upon any merits or any reasoning but was primarily based upon the above said alleged admission, which as discussed above, if made, should have been recorded by the learned trial court in writing and should have been further substantiated by any proper document on record. As discussed above, the said alleged admission has itself been assailed by the appellant herein, it was not recorded although being a material one, it is not supported by any document on record and the monthly income of the appellant / husband was primarily calculated by the learned trial court upon such admission, therefore the impugned order is not sustainable in the eyes of law. The calculation of monthly income of the husband as Rs. 30,000/- was further the basis to grant interim maintenance @ Rs. 10,000/- per month to the wife / respondent and as the assessment of Rs. 30,000/- per month income of the husband has itself been held to be not sustainable in the eyes of the law, therefore, the fixing of interim maintenance in favour of the wife @ Rs. 10,000/- per month out of said Rs. 30,000/- per month also becomes illegal and liable to be set aside.
There can not be any dispute over the law as laid down in the judgments as relied upon by the learned counsel for the wife / respondent, however, as the impugned order was based upon an unrecorded and unsubstantiated alleged admission, the said judgments being distinguishable from the facts of the case shall not help her at this stage. Further, as far as the aspect of ill health of the husband is concerned, it has CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.11/12 to be seen at the trial when the husband would be subjected to cross examination and would seek to prove various illness certificates.
8. In view of the above said discussion, the impugned order dated 19.05.2015 is set aside and the matter is remanded back to the learned trial court to decide afresh the above said application for fixing the interim maintenance on merits after hearing the arguments on behalf of the parties and only as per the material available on trial court record. It is further clarified that the FDR of Rs. 1,10,000/- which was deposited by the appellant / husband pursuant to the order of this court in terms of judgment of Hon'ble Delhi High Court in case Rajeev Preenja Vs. Sarika & Ors., 159(2009) DLT 616 towards arrears of interim maintenance and handed over to the wife / respondent vide order dated 03.11.2015 would not be claimed back by the appellant / husband and the said amount would be adjusted in the interim maintenance which would be fixed by the learned trial court.
9 The above said appeal is disposed of accordingly.
10 TCR be sent back along with copy of this order.
11. Appeal file be consigned to record room as per rules.
Announced in the open Court on 27.07.2016 (AMIT BANSAL) ADDITIONAL SESSIONS JUDGE-04 NEW DELHI DISTRICT, PATIALA HOUSE COURTS NEW DELHI.
CA No. 13/1/15 CC No. 175/4/14 PS Sarojni Nagar Sanjay Singh Vs. Jyoti Jeena Page No.12/12