Delhi District Court
Ca No.134/2021 "Kamalpreet Kaur vs . Harminder Singh & Ors." on 18 October, 2022
CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
IN THE COURT OF SH. GAUTAM MANAN, ASJ-02,
SOUTH WEST, DWARKA, NEW DELHI.
Criminal Appeal No. 134/2021
CNR No. DLSW01-010617-2021
In the matter of:
Kamalpreet Kaur,
W/o Sh. Harminder Singh,
R/o A-1/205, 1st Floor, Janakpuri,
Delhi. ... Appellant
Versus
1. Harminder Singh,
S/o Sh. Mohinder Pal Singh,
2. Mohinder Pal Singh,
S/o Late Sh. Budh Singh,
3. Kuldeep Kaur,
W/o Sh. Mohinder Pal Singh,
all at A-1/205, Janakpuri, New Delhi ... Respondents
Date of institution of Revision : 29.10.2021
Date on which judgment reserved : 07.10.2022
Date on which judgment pronounced : 18.10.2022
ORDER
1. Appellant Kamalpreet Kaur has preferred an appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'D.V. Act') against the order dated 29.09.2021 passed by learned MM (Mahila Court), Dwarka Courts, New Delhi in case No. MC/72/2019 titled as "Kamalpreet Lamba vs. Harminder Singh".
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2. Brief facts necessary for disposal of the case are that appellant got married to respondent No.1 on 07.12.2004 as per Sikh rituals and customs in Delhi. Appellant alleging cruelty on her filed an application under Section 23 of D.V. Act. Vide orders dated 24.04.2008, learned Trial Court passed an interim order restraining respondents from committing any act of domestic violence against the appellant.
3. Thereafter, appellant preferred an application under Section 31 of D.V. Act stating that the respondents disobeyed the protection order and hence, necessary action be taken against them. Proceedings continued on the application of the appellant filed under Section 31 of D.V. Act.
4. On 29.06.2019, application of the appellant seeking interim maintenance was disposed of by Ld Trial Court by stating that the interim maintenance of Rs.11,365/- per month was awarded to the appellant and her minor child by learned Family Court hence, no further orders were required to be passed.
5. Thereafter, appellant filed an application seeking clarification of the order dated 29.06.2019 wherein the appellant prayed that though her maintenance application was disposed of by Criminal Revision Page 2 of 9 CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
Ld. Trial Court vide its order dated 29.06.2019 but Court did not consider the fact that no order for maintenance was passed by the Trial Court since institution of her application and the interim maintenance which was granted to her by the Ld Family Court was only after the institution of the petition before it. It is submitted that her maintenance application was as such allowed from the year 2017 but in fact her maintenance application was pending before Ld Trial Court since 2008.
6. Ld. Trial Court vide its impugned order dated 29.09.2021, clarified that the order of interim maintenance granted by the Ld. Family Court shall be also effective from the date as mentioned in the order passed by learned Family Court and declined to interfere with the order dated 29.06.2019.
7. Aggrieved from the impugned order, appellant has preferred the present appeal on the ground that the Ld. Trial Court did not consider the fact that the proceedings under D.V. Act are in addition to and not in derogation of any law for the time being in force as per Section 36 of the D.V. Act. It is stated that the Ld. Trial Court ought to have decided the application of the appellant seeking maintenance as an independent proceedings and granting maintenance under D.V. Act is not a bar.
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8. It is stated that while disposing of the application of the appellant for seeking maintenance and other reliefs, Ld. Trial Court simply disposed of the application by stating that the maintenance has already been decided by the Ld. Family Court and ignored the fact that the application of the appellant was pending disposal since 2008 when the appellant instituted her petition under D.V. Act. It is submitted that in view of the above facts, Trial Court committed an error while not allowing the maintenance to the appellant from the date of institution of her application and hence the orders passed by Ld. Trial Court be set aside.
9. On the other hand, it is contended by respondents that on 25.03.2008 when the arguments on interim maintenance application of the appellant were heard, appellant restricted her claim only to two prayers namely protection order and residence order. It is stated that appellant never pressed her application for seeking interim maintenance and therefore, there was no occasion for Trial Court to pass an order on her application seeking interim maintenance. It is stated that in view of the specific orders dated 25.03.2008 of the Trial Court, appellant herself has given up her right for seeking maintenance neither she pressed her application at any point of time, therefore, the orders passed by learned Trial Court does not suffer from any illegality but are in consonance of the facts on record. Criminal Revision Page 4 of 9 CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
10. I have heard the rival submissions and gone through the record.
11. Main contention of the respondent no.1 is that the appellant herself restricted her claim only to the prayers in respect of protection order and residence order and this fact has been mentioned in the orders dated 25.03.2008.
12. Relevant part of order dated 25.03.2008 reads as under.
.......... I have heard the arguments on the interim application. For the present, Ld. Counsel for the complainant has restricted his claim only two prayers, namely for protection order and residence order.
13. It is evident that the Ld. Trial Court while passing orders mentioned that on that day of hearing, appellant restricted her claim only to protection order and residence order. This order nowhere mentions that appellant has forgone her claim in respect of the maintenance forever.
14. Above conclusion can be gathered from the subsequent orders passed during the proceedings. On 21.10.2008 Ld. Trial Court mentioned that interim application under Section 23 of the Act Criminal Revision Page 5 of 9 CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
with one prayer for maintenance is still pending. Similarly, on 18.12.2008, Ld Trial Court posted the matter for consideration of issue of maintenance and consideration of application of the appellant filed under Section 23 of the DV Act.
15. Order dated 26.06.2013 also mentions that respondent no.1 filed the reply to the application of the appellant seeking maintenance. On 08.02.2018 Ld. Trial Court in its order mentions about the pendency of application seeking interim maintenance. Order dated 08.02.2018 reads as under :
"As far as application under section 23, DV Act qua interim maintenance is concerned, counsel for both the parties have submitted that pleadings qua said application is complete. Petitioner as well as respondent no.1 are directed to file their income affidavit along with their ITR of the last three years and bank account details in terms of Kusum Sharma's judgment on record on the next date of hearing."
16. Above proceedings before Ld. Trial Court indicates that the Trial Court was always aware of the fact in respect of pendency of the application seeking interim maintenance. For one reason or the other, application could not be decided till the passing of the orders dated 29.06.2019 where in the interim application of the appellant was allowed in terms of the orders passed by Ld. Family Criminal Revision Page 6 of 9 CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
Court on 30.04.2019 wherein interim maintenance for amount of Rs.11,365/- per month was granted in favor of the appellant with effect from 02.11.2017.
17. It is matter of record that Ld. Trial Court while passing the order did not take into consideration the fact in respect of the pendency of appeal of interim application of the appellant and since the filing of her petition under section 12 of DV Act.
18. Respondent no.1 also filed an affidavit before Ld. Trial Court in respect of his assets, income and expenditure in the form of Annexure A. In respect to the query 18 affidavit reads as under:
18. Whether your spouse has claimed maintenance from you? If so, how much?
Ans. Yes, she has claimed maintenance in the year 2008 but she has not pressed in DV Act.
19. Reply submitted by the respondent no.1 establishes the fact that respondent was also aware that the maintenance was claimed from him by the appellant since 2008. But despite having the knowledge in that respect, he did not pay any maintenance to the appellant and till the passing of the order by Ld. Family Court on 30.04.2019.
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20. Fact of the matter remains that despite filing application seeking maintenance in 2008 itself appellant did not get any maintenance from respondent no.1 till the passing of the order by Ld. Family Court on 30.04.2019.
21. In Rajnesh vs. Neha & Anr, Crl. Appeal No. 1730/2020 decided on 04.11.2020, Hon'ble Supreme Court gave directions for the date from which Maintenance to be awarded as under:
It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
22. In present case, though Ld. Trial Court fixed the quantum of interim maintenance as Rs.11,365/- per month for the appellant but erred in not allowing the maintenance from the date of filing of her application despite the fact that her application for seeking maintenance was pending since 2008.
23. Hence, order dated 29.09.2021 passed by Ld. MM (Mahila Court-05), South-West, Dwarka stands set aside. Accordingly, the order dated 29.09.2021 stands modified to the Criminal Revision Page 8 of 9 CA No.134/2021 "Kamalpreet Kaur vs. Harminder Singh & Ors."
extent that appellant is entitled for maintenance of Rs. 11,365/- per month from the date of institution of her interim maintenance application. It is ordered accordingly.
Trial Court Record be sent back with copy of this order. File be consigned to Record Room.
Announced in the open court on 18th October 2022.
Digitally
signed by
GAUTAM
GAUTAM MANAN
MANAN Date:
2022.10.18
14:31:49
+0530
(GAUTAM MANAN)
ASJ-02 /SOUTH WEST
DWARKA: DELHI
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