Delhi District Court
Ms. Alka Tyagi vs Sh. Ajay Kumar on 16 May, 2012
IN THE COURT OF MS. SAVITRI, METROPOLITAN MAGISTRATE
(MAHILA COURT-I), KKD, DELHI
Case No. 302/04
Unique ID No. 02402R0339502004
Date of institution : 06.10.2004
Date of Judgment : 16.05.2012
Ms. Alka Tyagi
w/o Sh. Ajay Kumar
d/o late Sh. V.P. Tyagi
r/o H. No. 112, Sector-6,
Raj Nagar, Ghaziabad, U.P.
..... Petitioner
Versus
Sh. Ajay Kumar
s/o Sh. Mahinder Singh
r/o C-1161, DDA Flats,
East of Loni Road, Delhi-110093
..... Respondent
JUDGMENT:
Present is a petition u/s 125 CrPC. The case of the petitioner is that she got married to respondent on 14.02.94 and a child Master Shashank Tyagi was born from the marriage on 16.11.94. The child is in the custody of respondent. Sufficient dowry was given in the marriage but the petitioner was treated badly by the respondent and his family. She suffered from tuberculosis after the marriage. After this, she was even separated from her husband (respondent) and her own child and was not allowed to touch anything in the house and was made to live in a corner of the house and even her small plate was separated from the utensils of the kitchen. Entire family of the respondent avoided her fearing infection.
Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 1 of 16Later on, mother of the respondent started to curse the petitioner and asked her to leave so that she could get her son remarried and eventually she was turned out of the matrimonial house on 28.10.96 and she was not allowed to enter back. She got herself treated at Ghaziabad, U.P. and after treatment when she tried to return to matrimonial house, she was not allowed.
2 Respondent husband filed a divorce petition which was contested by the petitioner. Maintenance orders were passed in this petition in favour of the petitioner. Later on, a compromise of divorce case took place and the petitioner was taken back by the respondent in the matrimonial house on 14.12.01. Even now, the behaviour of the respondent and his family members did not change. They continued to humiliate and harass her and compelled the petitioner to leave the matrimonial house on 08.06.2004. She was again forcibly kicked out from the matrimonial house and the respondent and his family deprived the petition even of the affection of her minor child.
3 Respondent husband is a Government Servant working as Sub Inspector (now Inspector) in Delhi Police. It is stated in the petition that respondent owns agricultural land in village and has income from investments i.e. FDRs and shares etc. Maintenance @Rs.7,000/- per month has been prayed. It is stated in the petition that petitioner is housewife and has no source of income.
4 Respondent appeared and filed the written statement denying the allegations of cruel treatment. He took a preliminary objection that the complainant was herself guilty of leaving matrimonial house without consent and in the absence of respondent. She had Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 2 of 16 deserted him without any reasonable excuse. Further that she was an educated lady having passed B.A.,B.Ed. and was earning Rs.4,000/- per month from tuition job. Therefore, she was not entitled to any maintenance. Marriage and birth of the child was admitted. 5 It is further stated that the petitioner and her family members never disclosed about her disease at any time either to respondent or to his family. In fact, she used to go to her parental house to bring medicines from her family doctor at Tyagi Nursing Home, Raj Nagar but the respondent never objected to the same. The allegations regarding her segregation due to disease have been denied. She herself left the matrimonial house on 28.10.96, leaving behind the infant child. She was habitual in this regard.
6 On earlier occasions also she had left the matrimonial house many times and she had herself choosen the Ghaziabad doctor for her treatment. The respondent requested her many times to join the company but she did not given any attention. It was she who treated the respondent with cruelty and harassed him physically and mentally. Due to this, he was compelled to file a divorce petition but keeping in view the future of the son a compromise was made and divorce petition was withdrawn.
7 The petitioner at the instigation of her family members, pressurised the respondent to get separated from his mother and to get separate kitchen which he refused. She insulted his mother time and again and then she again left the matrimonial house on 08.06.2004 as the respondent did not bow down to her demand of separation. Respondent denied that the petitioner and her family members made Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 3 of 16 efforts for reconciliation but the respondent refused to keep the petitioner and stated in the written statement that neither the petitioner came to the matrimonial house nor she made any efforts for reconciliation. Rather, she refused to join the company of the respondent. She even did not contact her own son infant Shashank after she left the matrimonial house. She did not visit the house of the respondent even at the time of death of his father on 6.12.2004 and the condolence meeting on 15.12.2004 which she was expected to.
8 Respondent has admitted his employment in Delhi Police and regarding agricultural land he stated that he owned 2 & ½ bighas of land in village as fell to his share but there is no income from the land as there is no source of water to the said argricultural land and that he did not have any amount invested in fixed deposit. He has the liability of his old mother, child and himself. He had also employed a servant @Rs. 2,000/- per month to take care of his mother and child in the absence of the petitioner. She was living at her parental house at Ghaziabad with her brother against the wishes of the respondent and without any reasonable excuse. Hence, it has been prayed that the petition be dismissed. 9 Replication was filed by petitioner, wherein the contents of the petition have been affirmed and those of the written statement have been denied.
10 After completion of pleadings, evidence was led by the parties to prove their case.
11 The evidence affidavit of the complainant Alka Tyagi is on the lines of petition. Complainant/PW-1 has been subjected to extensive cross-examination by ld. counsel for respondent. In her cross-
Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 4 of 16examination, she admitted that she was a graduate and completed B.Ed. after graduation. She denied the suggestion that there is any family doctor at Raj Nagar, Ghaziabad. She admitted that she used to go sometime at Raj Nagar, Ghaziabad to take medicines from Dr. Anusuya Tyagi. She denied the suggestion that the respondent used to make payment of the expenses of medicines and other expenses. She admitted that she got treated at IHBAS but denied that the entire expenses of treatment were borne by the respondent.
12 In her cross examination, she stated that she was doing nothing and denied the suggestion that she was earning Rs.5500/- per month from tuitions job and at the time of petition she was earning Rs. 4,000/- per month. She denied the suggestion that she has invested her income with some financial institution which was not known to the respondent. She admitted that the respondent had made payment of maintenance in the divorce petition which was eventually compromised on 14.12.2001. She did not remember whether respondent had made payment of Rs.92,000/- plus in the divorce petition. She stated in her cross-examination that she did not remember when she made efforts to join the company of respondent. She admitted that none of the family members of respondent accompanied her when she came to stay at her parent's house in June, 2004. She denied the suggestion that she left the matrimonial house in the absence of respondent. She admitted that she did not contact her son since 2004 till today at the matrimonial house. She stated that she did not obtain any permission from the respondent when she left the matrimonial house. She stated that the message of death of her father-in-law received by her brother and not by her. She Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 5 of 16 admitted that she did not attend the last ceremony (Teravin) of her father- in-law at the matrimonial house. She denied the suggestion that respondent and his family did not make any allegatious remarks to her. 13 A specific question was put to her in the cross-examination that the respondent was a CGHS beneficiary being in Delhi Police, then why the complainant was not getting the benefit of the same. To this question, complainant answered that on the CGHS card, the respondent used to get his brother treated and not her.
14 Further, in her cross-examination, she admitted that she used to prepare food for herself, respondent, mother-in-law and son. She stated she could not say anything about separation of her food from the other family members at the matrimonial house. She stated that she did not make any complaint to the police officer or neighbour or her relative on 06.08.2004. She admitted that her mother-in-law was an aged lady. She also admitted that a male servant was kept for the household work at the matrimonial house during her stay. She volunteered to say that the servant was employed after two months of the compromise. She denied the suggestion that the Bhabhi and ladies of the respondent's family never asked for remarriage of the respondent. She denied the suggestion that she voluntarily left the matrimonial house and that the respondent provided each and everything to her at the matrimonial house. She stated that she never saw the agricultural land of the respondent and that she did not have any documentary proof of the income from the said agricultural land. She denied the suggestion that she was not dependent upon the respondent for the purpose of maintenance. She admitted that the respondent was bearing the expenses of the studies of the child and Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 6 of 16 his ailing mother and other social customs. She denied the suggestion that she has filed a false petition.
15 PW-2 is one Abhay Tyagi, brother of petitioner. In his evidence, he supported the case of the petitioner. In his cross- examination by ld. counsel for respondent, he admitted that he did not make any complaint against the respondent regarding his bad behaviour with the petitioner and that he and his sister did not make any complaint to the Women Cell against the respondent with respect to less dowry. He denied the suggestion that respondent and his family members never asked the petitioner to bring more dowry and did not behave with her like slave. Further that the respondent and his family members provided each and everything to the complainant at matrimonial home and she was behaved with properly. In his evidence, he also denied that entire expenses of treatment and medication were borne by the respondent. He also denied the suggestion that the complainant was not turned out of the matrimonial house. He denied the suggestion that petitioner was habitual of leaving matrimonial home without consent and permission of the respondent. He admitted that no report was made against the respondent in respect of incident dated 28.10.1996 and 08.06.2004 when on these two occasions the complainant was turned out of the matrimonial house. He denied the suggestion that he did not visit the house of the respondent after 08.06.2004 till death of his father except on the day of condolence meeting. He stated in his cross-examination that he did not inform about the death of father-in-law of the complainant to any of his family members and told them about the same only after attending condolence meeting and denied the suggestion that all his family members were very well Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 7 of 16 aware about the death. I am not inclined to believe the testimony of PW-2 on this aspect that he did not inform any other member of his family regarding the death of father-in-law of petitioner. This does not happen during ordinary course of things. Otherwise, his evidence has been consistent and trustworthy and it inspires confidence. He further stated in cross-examination that he did not bring the complainant back in the matrimonial house after 08.06.2004 and a meeting was called in his own house i.e. the house of the witness and respondent was called in the meeting. He admitted that no notice or petition was filed to claim the custody of the minor child by the petitioner. He denied the suggestion that he, his brothers and mother did not make any effort for reconciliation of the parties to the petition. He denied the suggestion that utensils of the petitioner were not separated from other family members. He also admitted that the petitioner used to prepare meal in the common kitchen for all the family members at the time of disease. He denied the suggestion that the divorce petition was not withdrawn by the respondent to evade payment of maintenance. He denied the suggestion that petitioner had deserted the respondent. He denied the suggestion that he did not have complete knowledge about the facts of the present case. 16 Respondent had examined himself as RW-1. He has led his evidence by way of affidavit. It is on the lines of written statement. It is stated in the evidence affidavit that after the marriage, the petitioner also behaved very well in the beginning at the matrimonial house but later on she became aggressive and demanded expulsion of mother of petitioner from the matrimonial house. The incident of 25.10.96 is mentioned in the evidence affidavit to the effect that on this date the respondent returned Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 8 of 16 home from the office and came to know that a washing-machine was sent to his house by brother of the petitioner without his consent and knowledge and when respondent asked the petitioner about it, she started `Hatha Pai' with the respondent and bit his palm. This is altogether a new story which has been put forth in the evidence of affidavit of the respondent. It is stated that the petitioner stated to him that in case he did not expel his mother from the matrimonial house, she would not live in the company of the respondent and will not allow the respondent to cohabit. Further, it is mentioned that on 17.05.2003, the respondent was not at home, the petitioner made a PCR call and called thee local police from PS Mansarovar Park and asked the IO to put pressure so that the mother-in-law could be expelled from the house. Thereafter, on 26.08.2003, the petitioner again left the matrimonial house on the pretext that she cannot live with her mother-in-law and after great persuasion was brought back in January, 2004. Petitioner neglected her domestic duties and again repeated the previous acts and the respondent had to leave for his office without food on many occasions.
17 On 08.02.2004, the petitioner broke her bangles and threw away the articles of the house in the entire house and disturbed the life of the respondent and stated that she was not their maid-servant and she will not obey the respondent and his mother as she was an educated lady. 18 On 20.05.2004, when the respondent demanded food from her, she threw the utensils on the respondent and said that she will not provide him food until and unless the mother of respondent is not turned out of the house and thereafter she left the matrimonial house along with her mother on 08.04.2004 and flatly refused to join the company of the Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 9 of 16 respondent.
19 It is further stated that in December, 2004 when the father of the respondent expired, he informed the petitioner and her mother about the death of his father but she neither visited on the day of cremation nor joined the condolence meeting held on 16.12.2004.
20 All these averments as mentioned above which have been newly introduced after the written statement, at the stage of respondent evidence, cannot be read in evidence as this case was not put up by the respondent in the written statement. Therefore, I shall not rely upon the same.
21 In the cross-examination by the ld. counsel for the petitioner, respondent admitted his employment with the Delhi Police as Inspector. In his cross-examination, he stated that prior to joining Delhi Police, he was working in Indian Railways as a Clerk but he did not produce any document to show that.
22 In his cross-examination, respondent stated that he has no idea as to how much his salary has increased since the petition was filed and especially after coming into effect the 6th Pay Commission. Further, he stated that he could not tell his employee code given to him in the Police force. He also stated that he did not have any details of perks which is part of his salary. He stated in his cross-examination that he did not own any flat. He stated that he did not remember the number of his salary bank account. He also did not remember the investments made by him. He stated that he did not remember if he made any investments in mutual funds, FDR, Ulips, Shares, Stocks, Debentures etc and stated that till 20.01.2005 he had not made any investment or fixed deposit. This is Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 10 of 16 the date on which his written statement was filed. Witness stated in his cross-examination that he could produce the relevant records, if the same are available, on the next date of hearing. He stated that the documents pertaining to income tax returns for the last five years, salary slip for the last five years, statement of bank account for the last five years and particulars of investments made in the last five years, were not traceable and therefore he could not produce the same and that he has no source of income except his salary. I draw adverse inference against the respondent from the evidence as stated above. It is clear and I hold that he has made a deliberate and every possible attempt to hide his true income from the court and he had lied in the court on oath. Regarding his income, he stated that his monthly expenses are about Rs.20,000-25,000/- per month excluding the maintenance amount paid to the petitioner. He denied the suggestion that he was deposing wrongly that he was living in the house owned by his brother Ashok Kumar. He admitted owning a share in the ancestral agricultural land but stated that he was not deriving any income from the same. He also admitted that he had a share in the residential property in Ghaziabad but interestingly did not remember the details of this property. In his cross-examination on 21.07.2011, he admitted that a plot bearing No. 1/218, Vasundhara Complex is owned by him. 23 Nothing material could be elicited in his cross-examination. He has denied all the suggestions contrary to the averments made in his evidence affidavit. He denied the suggestion that the petitioner was ready and willing to join his company but he was not interested. 24 RW-2 is the minor son of the parties namely Master Shashank Tyagi. In his evidence, he has supported the case of the Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 11 of 16 respondent. He stated that he is 17 years of age and that the petitioner often used to leave the matrimonial home without any reasonable cause and excuse and while leaving the matrimonial home she never used to take the permission from his father or his grand-mother. On 17.05.2003 when his father had gone to the hospital, his mother called police and on 08.06.2004 she left the matrimonial house along with her mother without any reasonable excuse and when she was leaving, she did not ask RW-2 Shashank Tyagi, her child to accompany her. In December, 2004, his grand-father expired but the petitioner neither visited on the date of cremation nor on the day of condolence meeting, although, his Mama Sh. Abhay Tyagi visited on the day of condolence meeting. RW-2 further stated that as per his memory, the petitioner never took care of him and never taught him. It was his father and his grand-mother who took care of him. The petitioner never called him since 08.06.2004 when she left the matrimonial house nor she visited their home to meet him. 25 I have been through the entire record carefully and heard arguments of ld. counsel for parties.
26 It is not the case of the respondent husband that he was offering to maintain the petitioner only on the condition of her living with him. Therefore, I will not go into the question regarding justification of her living separately from the respondent husband. Rather, the respondent husband had himself filed a divorce petition which is a admitted case implying thereby that he did not want to live with her. In the present petition, the respondent husband has taken another ground of desertion to plead that the complainant is not entitled to receive any maintenance. The burden to prove this ground was upon the respondent. He has Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 12 of 16 consistently taken a plea that the complainant had deserted him. This plea was supported by RW-2 also who is the child of the couple. On the other hand, the suggestion with respect to desertion have been effectively denied by both the PWs, though, it is also admitted case that she even did not visit the house of the respondent at the time of death of his father and never visited the matrimonial house after 08.06.2004 nor she met her child after this date, but still as per her, she and her brother made efforts for reconciliation between the parties which had failed. The suggestions to the contrary have been effectively denied by her and her brother in the evidence. Not only this, the consistent stand of petitioner has been that she had been turned out of the matrimonial house. Further, that the respondent did not make any efforts of reconciliation. The contention of respondent has been that he made efforts of reconciliation but he could not prove the same to my satisfaction. In this light, the petitioner tried to make out a case of constructive desertion by the respondent husband. Therefore, I hold that respondent has not been able to establish the ground of desertion, so as to dis-entitle the complainant from claiming the maintenance.
27 Before discussing the quantum of maintenance, one aspect needs to be discussed first. The case of the respondent is that the petitioner is not entitled to any maintenance because she is earning sufficient money by giving tuitions to children at home because she is a highly educated lady having degrees of B.A., B.Ed. Whereas, the stand of the complainant is that though she B.A., B.Ed. but she has not done any job nor she is giving tuitions, hence, she has no means of maintenance, as on date. It was the burden of respondent husband to Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 13 of 16 establish the source of income of complainant, if any. Since, he has failed to discharge his burden, accordingly, I hold that the respondent husband has been unable to prove any source of income of the petitioner. Hence, she is entitled to receive maintenance amount from the respondent. 28 The relationship between the parties has been admitted by the respondent and his employment with Delhi Police has also been admitted. He has placed on record, after my direction, his latest salary slip i.e. April, 2012, according to which the total emoluments of respondents are Rs.50,318/- per month. Therefore, now I will discuss the quantum of maintenance.
29 It is important to note that the respondent has made every possible attempt to to hide his true income from the court and he had lied on oath in the court. He had deliberately tried to hide his income and investments. He even deliberately did not give the details of his ancestral property/house in which he has a share. Therefore, his income appears much more than just salary in view of his attempts to hide truth regarding his income from sources other than the salary i.e. movable or immovable properties. I, accordingly hold so. The complainant has admitted that the respondent husband has to maintain his mother and the child of the couple, who was minor at the time of petition and has attained majority now. Though, there is no legal liability on behalf of respondent husband to maintain Shashank after majority. But still, it is relevant factor in determination of quantum of maintenance.
30 Ld. counsel for the respondent has argued that out of the total emoluments, respondent has to make expenses for himself, also. Respondent claimed that he was spending Rs.20,000-25,000/- per month Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 14 of 16 as maintenance of his family. Going by the same standard, a handsome amount has to be ordered for the maintenance of petitioner wife because she has to live at the same status as respondent husband. From the latest salary slip of respondent husband, which is for the month of April, 2012 , I understand that he is making a GPF contribution @ Rs.10,000/- per month, whereas his Basis Pay is Rs.18,480/- (Grade Pay Rs.4600/- per month). However, the statutory GPF contribution which is 6% of Basic Pay, comes to only around Rs.2,000-2,500/- per month. Considering this, the net income of the respondent husband, should be around Rs.45,000/- per month. Ld. counsel for respondent has argued that out of this salary, the amount shown as ration money @ Rs.1697/-, transport allowance @ Rs.2640/- and conveyance allowance @ Rs.375/- be not counted as part of the salary because this expenditure has actually made by the respondent in performance of his official duties. I agree to this submission and accordingly in this view, the net income of respondent husband should be around Rs.40,288/-. Since, he has to maintain himself, his mother and and the child out of this amount, I order the respondent husband to pay a sum of Rs.10,000/- per month to petitioner wife, w.e.f. today. Since, the salaries have increased only recently after the 6 th Pay Commission and the child of the couple was minor at the time of filing of the petition, I order respondent husband to pay a sum of Rs.6,000/- per month to petitioner wife w.e.f. date of filing of the petition till the date of this judgment. Payments already made by respondent shall be liable to be adjusted.
31 The respondent husband is directed to deposit the amount of maintenance by 10th of every month in the bank account of petitioner and Case No. 302/04 Alka Tyagi Vs. Ajay Kumar Page 15 of 16 in case it is not possible the amount be paid through counsel for petitioner. The respondent husband is directed to clear the arrears within six months from today.
File be consigned to record room.
ANNOUNCED IN THE OPEN (SAVITRI)
COURT ON 16-05-2012 MM/Mahila Court-I
North East/KKD/Delhi
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