Delhi District Court
Vinay Kumar Jain vs State And Ors on 15 July, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET01-009147-2022
CA No:- 156/22
Vinay Kumar Jain v. State & Anr.
Sh. Vinay Kumar Jain
S/o Sh. Nem Chand Jain
R/o House No. 2136, Gali No. 8
Kailash Nagar, Gandhi Nagar
Delhi-110031
....... Appellant
Versus
1. State
(GNCT of Delhi)
2. Smt. Archana Jain
W/o Sh. Vinay Kumar Jain
R/o House No. 484/5A-3B
Shalimar Park, Bhola Nath Nagar
Shahdara, Delhi-110032
....... Respondents
And
CNR No:- DLET01-008760-2022
CA No:- 149/22
Nem Chand Jain v. State & Anr.
Sh. Nem Chand Jain
S/o Late Sh. Lakhmi Chand Jain
R/o House No. 2136, Gali No. 8
Kailash Nagar, Gandhi Nagar
Delhi-110031
....... Appellant
Versus
1. State
(GNCT of Delhi)
Digitally signed
AKASH by AKASH JAIN
Date:
JAIN 2024.07.15
17:17:14 +0530
CA No:- 156/22 & 149/22 Page No:- 1 of 19
2. Smt. Archana Jain
W/o Sh. Vinay Kumar Jain
R/o House No. 484/5A-3B
Shalimar Park, Bhola Nath Nagar
Shahdara, Delhi-110032
....... Respondents
JUDGMENT
1. By way of this common judgment, I shall dispose of both the present appeals preferred by Sh. Vinay Kumar Jain and Sh. Nem Chand Jain assailing the impugned order dated 06.08.2022 passed by the court of Ld. MM (Mahila Courts-01/East District, Karkardooma Courts, Delhi) in Case no. 2191/2019 titled as Archana Jain v. Nem Chand Jain & Ors. filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') whereby appellant/ Vinay Kumar Jain was directed to pay Rs.25,000/- per month to Smt. Archana Jain/ complainant for her maintenance as well as maintenance of her daughter from the date of filing of petition under DV Act till disposal of the same and vide which complainant and her daughter were permitted to reside in shared household i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 and appellants were restrained from creating any hurdles in peaceful possession of complainant and her daughter at the said premises.
2. For the sake of convenience, I shall be referring to the parties as per their nomenclature before the Ld. Trial Court.
Digitally
signed by
AKASH AKASH JAIN
Date:
JAIN 2024.07.15
17:17:32
+0530
CA No:- 156/22 & 149/22 Page No:- 2 of 19
Factual Matrix
3. Succinctly stated, a complaint under Section 12, 18, 19, 20 and 23(2) of DV Act was filed by the complainant against respondent no. 1 and 2. The complainant averred in her petition that she got married to respondent no. 2 on 07.05.1998 and three children namely, Akshita Jain, Khyati Jain and Aashirwad Jain were born out of the said wedlock. It was alleged by the complainant that after the demise of her mother-in-law (saas) on 20.03.2016, respondent no. 1 i.e. her father-in-law started having evil eyes on her and began abusing her in filthy language on petty issues. It was alleged that respondent no.1 used to enter in her room at first floor without knocking and whenever she objected to the same, he used to abuse her in vulgar and filthy language. It was alleged that respondent no.1 was in a habit to take bath in her bathroom at first floor and despite her objections used to say that the property in question belonged to him and he could take bath anywhere he wanted. Complainant alleged that on 19.10.2018, respondent no.1 and respondent no. 2 assaulted her on false allegations of illicit relationship with her brother-in- law (nandoi). It was further alleged by the complainant that on 26.10.2018, respondent no.1 molested her, torn her clothes and attempted to commit rape upon her, as a result of which, she came to her paternal house and lodged an FIR No. 301/18 Police Station Gandhi Nagar. The complainant further levelled various allegations of being abused and threatened by respondent no.1 as well as respondent no. 2 on various occasions, owing to which she was constrained to file the complaint under relevant provisions of DV Act.
Digitally signed AKASH by AKASH JAIN
Date:
JAIN 2024.07.15
17:17:40 +0530
CA No:- 156/22 & 149/22 Page No:- 3 of 19
4. During pendency of the aforesaid complaint proceedings, the application of complainant seeking interim maintenance and residence was disposed by Ld. Trial Court vide impugned order dated 06.08.2022 with the following observations as under:-
"....7. It cannot be denied that in a matrimonial dispute, the parties are inclined to hide their true income and exaggerate their expenses before the court. Further, it has regrettably become a common practice for the respondent husband to shrink his income before the court in order to escape the liability of maintaining his wife and children. This is a classic case in which the respondent no. 2 has shrunk his income to such an extent that it is averred before this court that the respondent no. 2 is not left with any disposable income at the end of the month. The respondents have, in their reply admitted that the respondent no. 2 is looking after the business at Chandni Chowk. It appears that the respondent no. 2 has willfully concealed his true income from this court in order to wriggle out of his responsibilities towards the petitioner and her daughter. It is clear that the respondent no. 2 is working in the textile business at Chandni Chowk. The ITR of the respondent no. 2 cannot be relied upon to be the gospel truth of the exact income earned by respondent no. 2 as it is in the nature of tax payers to shrink their income before the tax authorities in order to escape the tax liabilities. A reasonable application of judicial mind can lead to assessment of notinal income of the respondent no. 2, which can be estimated to be anywhere between Rs. 50,000/- to Rs. 2,00,000/- per month, after making adjustment for the slowdown of business during the covid- 19 pandemic. Therefore, out of the said notional income, I deem it fit to grant interim maintenance @ Rs.25,000/- per month to be paid by the respondent no. 2 to the petitioner for the maintenance of petitioner and her daughter from the date of filing of the present petition till the disposal of the present case. The said amount is directed to be deposited in the bank account of the petitioner before 15th day of every month, starting from next month. Arrears of maintenance, as accrued, are directed to be cleared by respondent within 06 months of the present order.
8. Apart from maintenance, the petitioner has also prayed for interim residence order to be granted to the petitioner with direction to reside in the matrimonial house i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:17:50 +0530 CA No:- 156/22 & 149/22 Page No:- 4 of 19 Delhi-31, where the petitioner resided after her marriage. In his reply, the respondents have stated that the said matrimonial house / shared household is the self acquired property of respondent no. 1 and therefore the petitioner cannot be allowed to reside there. Now, it is no longer res integra that the aggrieved person in a DV case has the right to reside in the shared household irrespective of any legal rights in the same. This right of residence is a path breaking piece of legislation which has been included in the DV Act in order to secure the rights of the aggrieved person and irrespective of the actual owner of the premises in question, an aggrieved wife in a DV case shall always have a right to reside in the shared household which was shared by her with her husband after her marriage. Therefore, coming to the facts of the present case, I deem it fit to allow the petitioner and her daughter to reside at the shared household i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31, starting immediately and the respondents are restrained from creating any hurdles in the peaceful possession of the petitioner and her daughter at the above mentioned premises, except in accordance with procedure established by law.
9. Any default in payment of interim maintenance on a monthly basis shall be wed strictly in terms of the judgment of Hon'ble High Court of Delhi in "Gaurav Sondhi Vs. Divya Sondhi", 120 DLT (2005) 426.
10. At this stage, I would also like to state that anything received by the petitioner in any other proceedings of maintenance or proceedings of like nature or towards ad interim maintenance shall be adjusted in the amount awarded by this order.
11. Nothing stated herein shall tantamount to an expression of opinion on the final merits of the case.
12.With the above said observations, the present application U/s 23 of the DV Act is disposed of.
13. Copy of order be given dasti to both the parties...."
Grounds of Appeal
5. Being aggrieved of the abovesaid order, the appellants/ respondents have assailed the same on primarily following grounds as under:-
(i) That Ld. MM had passed the impugned order in a AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:18:03 +0530 CA No:- 156/22 & 149/22 Page No:- 5 of 19 mechanical way without appreciating the pleadings and facts of the complaint and failed to consider that the complaint filed by the complainant lacked any proof of domestic violence;
(ii) That the impugned order was based on conjectures, surmises and caused grave inconvenience and hardship to respondent no. 2;
(iii) That the impugned order passed by Ld. MM was contrary to law, arbitrary and without any justification;
(iv)That Ld. Trial Court exceeded its jurisdiction while granting maintenance to daughter of complainant as the complainant never made a prayer for grant of maintenance to her daughter in her complaint in the first place and also at the time of filing of complaint in question, daughter of complainant was admittedly major and thus, not covered within the purview of Section 2(b) of DV Act;
(v) That Ld. Trial Court failed to consider that the complainant did not place any cogent material on record with respect to her expenses to the tune of Rs. 25,000/- per month;
(vi) That Ld. Trial Court committed gross error in assessing the notional income of respondent no. 2 to the tune of Rs.50,000/- to Rs. 2,00,000/- per month and assessed the same without any lawful grounds;
(vii) That Ld. Trial Court failed to consider that the respondent no. 2 was facing great hardship, economic crisis and struggling for his survival and his ailing father aged about 74 years besides looking after and taking care of his other two minor children;
(viii) That Ld. Trial Court failed to consider that property in question i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 belonged to respondent no. 1, being his self acquired AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:18:14 +0530 CA No:- 156/22 & 149/22 Page No:- 6 of 19 property.
6. A reply was filed on behalf of complainant/wife in response to both the present appeals wherein it was averred that the order passed by Ld. Trial Court was just, reasonable and needs no interference by this Court. While, denying the contentions and grounds raised in the appeal, Ld. Counsel for complainant reiterated the allegations of domestic violence and non-payment of maintenance to the complainant and her daughter by the respondent no. 2 which is necessary for their reasonable sustenance.
7. Arguments heard on behalf of both the parties and record perused carefully.
Analysis & Findings
8. Suffice it to say, the factum of marriage between complainant and respondent no. 2 is not in dispute. It is also not in dispute that both of them resided together as husband and wife at the matrimonial house H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 and were in 'domestic relationship'. While, complainant has made allegations that she was subjected to domestic violence by both respondents, same have been categorically denied by the respondents. It is well settled that serious disputed questions of facts which require evidence cannot be gone into at the stage of deciding an application for grant of interim maintenance as the same can only be decided during course of trial after leading of evidence. Since, the complainant has made allegations of being subjected to domestic violence by AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:18:24 +0530 CA No:- 156/22 & 149/22 Page No:- 7 of 19 respondent no. 1 and 2, a prima facie case of domestic violence is made out in the instant case.
9. In the case of Rajnesh v. Neha & Anr, (2021) 2 SCC 324, Hon'ble Supreme Court of India was pleased to consider a wide gamut of issues arising out of matrimonial disputes which interalia included issues relating to payment of interim compensation and criterias for computing the same. The relevant excerpts from the judgment are reproduced for ready reference:-
".... (i) The objective of granting interim / permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. In Manish Jain v. Akanksha Jain, this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2024.07.15
17:18:38 +0530
CA No:- 156/22 & 149/22 Page No:- 8 of 19
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiraling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meager that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort...."
10. In the case of Chander Prakash Bodhraj v. Shila Rani Chander Prakash, AIR 1968 Delhi 174, Hon'ble Delhi High Court held as under:-
"....an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. In the present case, as the husband has not frankly disclosed to the Court, as he ought, his allowances which he admittedly gets, the presumption would be easily permissible against him...."
11. Further, in the case of Shamima Farooqui v. Shahid AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:18:49 +0530 CA No:- 156/22 & 149/22 Page No:- 9 of 19 Khan, (2015) 5 SCC 705, Hon'ble Supreme Court of India while citing the aforesaid judgment of Chander Prakash Bodhraj (supra) with approval, held that the obligation of husband is on a higher pedestal when the question of maintenance of wife and children arises.
12. In the backdrop of aforesaid legal propositions, the short questions to be decided in present appeals are:
(i) Whether interim maintenance to the tune of Rs.
25,000/- per month fixed by Ld. Trial Court in favour of complainant and her daughter against respondent no. 2 is justified; and,
(ii) Whether Ld. Trial Court was justified in granting right of residence to the complainant in premises i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 which allegedly belong to respondent no. 1.
13. So far as right of residence is concerned, Section 17 of DV Act grants an aggrieved woman the right to live in the "shared house-hold". Section 2(s) of DV Act defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
14. In the case of Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, Hon'ble Supreme Court of India was pleased AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:19:04 +0530 CA No:- 156/22 & 149/22 Page No:- 10 of 19 to hold that Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest.The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
15. In the present case, it is admitted position of facts that H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 is the shared house-hold of complainant, where she resided after the marriage. Thus, Ld. Trial Court rightly held that complainant being aggrieved wife in a DV case is entitled to reside in the above-said shared house-hold irrespective of ownership of said premises. It is though not out of place to mention that complainant herself admitted in her DV petition that after marriage she used to reside at 1 st floor of the aforesaid premises. It was also brought to the notice of Court during course of arguments on present petition that complainant is presently in occupation of both 1st and 2nd floor of aforesaid premises and 2nd floor has only one built up room which could only be accessed through 1st floor. Thus, to avoid possibility of multiplicity of litigation, this Court deems it expedient to allow complainant and her daughter to reside at the shared house-hold i.e. 1st and 2nd floor of H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31 instead of entire premises as directed by Ld. Trial Court. The impugned order dated 06.08.2022 therefore, stands AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:19:15 +0530 CA No:- 156/22 & 149/22 Page No:- 11 of 19 modified qua right of residence of complainant and her daughter at the shared house-hold accordingly.
16. As regards quantum of maintenance, during course of proceedings of present appeals, respondent no. 2 Vinay Kumar Jain had reportedly passed away on 24.01.2024 and it was informed by his Counsel that his father or any other legal heir were not interested in pursuing the said appeal. Since, the appeal in question had been preferred by respondent no. 2 in the year 2022 when he was alive, the same is being decided on merits on the basis of material on record.
17. It was averred by the complainant that she had no source of income to meet her day to day needs required for basic living. It was further averred that respondent no. 2 was running a shop in Katra Dhulia at Chandni Chowk and was doing the work of wholesale trading of textile and was earning around Rs. 1,50,000/-per month from the said shop. It was further submitted that respondent no. 2 deliberately concealed his real income in the income affidavit and failed to correctly declare the details of his balance-sheet and statement of account from the proprietorship business run by him at the aforesaid shop.
18. Per contra, it was averred on behalf of respondent no. 2 that he was merely earning Rs. 10,000/- per month from the business of textile run by him at the aforesaid shop. It was averred that respondent no. 2 was not having disposable income and had additional responsibilities of maintaining his old ailing Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:19:24 +0530 CA No:- 156/22 & 149/22 Page No:- 12 of 19 father and two other minor children. It was further averred that ITRs of respondent no. 2 for the year 2018-19 and 2019-20 were placed on record in support of his averments.
19. It is no longer res integra that the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.
20. The present case is no different. While, the complainant has exaggerated her monthly expenses without any cogent material on record, respondent no. 2 has suppressed vital details regarding balance sheet and profit and loss account statement of his business in his income affidavit. On one hand, respondent no. 2 had claimed (at serial no. 10 and 45) of his income affidavit that his monthly income is Rs. 10,000/- per month from all sources. On the other hand, he had shown his monthly expenditure (at serial no. 11 and 60) of income affidavit as Rs.10,000/- per month excluding education expenses of his children which comes to Rs. 6,000/- as per serial no.39 of income affidavit. Thus, the monthly expenditure of respondent no. 2 as Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:19:32 +0530 CA No:- 156/22 & 149/22 Page No:- 13 of 19 reflected in his income affidavit comes to Rs. 16,000/- per month as against his declared income at the rate of Rs. 10,000/- per month, which defies logic and reason.
21. Additionally, it was brought to the notice of this Court by Ld. Counsel for complainant that at serial no. 41 (vii) of income affidavit, the respondent no. 2 had declared that he had also employed a worker at his shop/ proprietorship firm, however, he failed to disclose his salary in the affidavit. In the absence of disclosure of salary details of said workman, even if we take the standard of minimum wages of an unskilled labour on conservative side, the said worker could have been easily presumed to be drawing salary to the tune of Rs.15,000/- (approx.) per month from respondent no. 2.
22. Considering the aforesaid circumstances, it is apparent that respondent no. 2 has clearly concealed his true and correct income from his textile business being run from the shop at Katra Dhulia, Chandni Chowk, Delhi. There is though nothing substantial on record to assess notional income of respondent no. 2 between Rs. 50,000/- to Rs. 2,00,000/- per month, as carried out by Ld. Trial Court. Having considered the ITRs of respondent no. 2 for the years 2018-2019 and 2019-2020, his statement of account, income affidavit and other circumstances, the notional monthly income of respondent no.2 during the relevant period is assessed to the tune of Rs. 40,000/- to Rs. 50,000/- per month.
23. At this stage, it is imperative to deal with one of the important ground raised in the present appeal by the respondent AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:19:44 +0530 CA No:- 156/22 & 149/22 Page No:- 14 of 19 no. 2 regarding grant of maintenance to his major daughter namely Akshata Jain. It was averred on behalf of respondent no. 2 that at the time of filing of DV Petition by the complainant, her daughter namely Akshata Jain had already attained majority and thus, Ld. Trial Court exceeded its jurisdiction in granting maintenance to the major daughter of complainant, who is not covered within the definition of Section 2(b) of DV Act.
24. Section 20 (1) of DV Act reads as under:-
"20. Monetary reliefs.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force."
25. Section 2(b) of DV Act defines 'child' as any person below the age of 18 years and includes any adopted, step or foster child.
26. Here, it is apposite to also refer Section 20 of Hindu Adoption and Maintenance Act, 1956 which reads as under:-
Digitally signedAKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:19:53 +0530 CA No:- 156/22 & 149/22 Page No:- 15 of 19 "20. Maintenance of children and aged parents:-
(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
Explanation.- In this section "parent" includes a childless step-mother."
27. While Section 20(1)(d) of DV Act provides for awarding maintenance to the aggrieved person as well as the children, the definition of the child given in Section 2(b) of the Act describes child as any person below the age of 18 years. Hence, under the provisions of Section 20, maintenance can be awarded only to aggrieved person and children. In the instant case, as the eldest daughter of complainant and respondent no.2 namely Akshata Jain was admittedly major at the time of filing DV Petition, Ld. Trial Court erred in granting maintenance to the daughter of the complainant vide impugned order.
28. No doubt under the provisions of Section 20 of Hindu Adoption and Maintenance Act and Section 125 of CrP.C, maintenance could have been claimed by a major daughter from her father, if she was unable to maintain herself, however, the said maintenance could not have been granted by the court of Ld. MM. Reliance is placed upon the case of Abhilasha v. Parkash, in AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.07.15 17:20:02 +0530 CA No:- 156/22 & 149/22 Page No:- 16 of 19 Criminal Appeal No. 615/2020 decided on 15.09.2020, wherein Hon'ble Supreme Court of India was pleased to hold as under:-
"... 33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order.
34. In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major...."
29. For the sake of arguments, even if it is assumed that Ld. MM was empowered to grant maintenance to a major unmarried daughter, the same could not have been granted in the present case as complainant nowhere made a prayer seeking maintenance for her daughter in her main DV Petition. It is well settled in the case of Ms. Akella Lalitha v. Sri Konda Hanumantha Rao & Anr, 2022 LiveLaw (SC) 638, that relief not found on pleadings should not be granted. If a court considers or grants a relief for which no prayer or pleading was made depriving the other party of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.
Digitally signedAKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:20:13 +0530 CA No:- 156/22 & 149/22 Page No:- 17 of 19
30. Thus, Ld. Trial Court exceeded its jurisdiction while granting maintenance to major daughter of complainant in this case.
31. Considering these circumstances, fact that notional income of respondent no. 2 is re-assessed by this Court @ Rs. 40,000/- to Rs. 50,000/- per month during the relevant period, fact that maintenance could not have been granted by Ld. MM to the major daughter of the complainant, fact that respondent no. 2 was required to maintain his other two minor children as well as his old aged father, ends of justice would be met if interim maintenance granted to the complainant by Ld. Trial Court is modified to the tune of Rs. 12,500/- instead of Rs. 25,000/- per month as directed by Ld. Trial Court from the date of filing of DV petition till disposal of the same.
Conclusion
32. Keeping in view the facts, circumstances and observations as above, impugned order dated 06.08.2022 is modified to the effect that notional income of respondent no. 2 is re-assessed @ Rs. 40,000/- to Rs. 50,000/- per month during the relevant period. Interim maintenance so awarded to the complainant by Ld. Trial Court is reduced to Rs. 12,500/- per month. Right of residence of complainant and her daughter in the shared household is reaffirmed albeit to the extent of 1 st and 2nd Floor of the House No. i.e. H. No. 2136, Gali No. 8, Kailash Nagar, Gandhi Nagar, Delhi-31. Remaining terms and conditions of impugned order shall remain intact.
Digitally signedAKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:20:22 +0530 CA No:- 156/22 & 149/22 Page No:- 18 of 19
33. Both the present appeals accordingly stand disposed off in terms thereof.
34. Needless to say that, the assessment of income of respondent no. 2/ husband by way of this order is only for the purposes of determining interim maintenance. Nothing stated herein above shall tantamount to the expression of an opinion on the merits of the case. Upon conclusion of evidence, a clear view could be taken by Ld. Trial Court with respect to actual income and expenditure of the parties.
35. Copy of this judgment along with Trial Court record be sent to the Ld. Trial Court for information and records.
36. File be consigned to record room after due compliance.
Digitally signedAKASH by AKASH JAIN Date:
JAIN 2024.07.15 17:20:30 +0530 ANNOUNCED IN OPEN (AKASH JAIN) COURT ON 15.07.2024 ASJ-04, EAST DISTRICT KARKARDOOMA COURTS DELHI This judgment contains 19 pages and each paper is signed by me. AKASH by Digitally signed AKASH JAIN Date:
JAIN 2024.07.15 17:20:36 +0530 (AKASH JAIN) ASJ-04, EAST DISTRICT KARKARDOOMA COURTS DELHI CA No:- 156/22 & 149/22 Page No:- 19 of 19