Delhi District Court
Sonal Agarwal @ Sonal Bajoria vs Puneet Agarwal And Another on 23 October, 2015
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS : DELHI.
Crl. Appeal No.74/15
In the matter of :
Sonal Agarwal @ Sonal Bajoria .....Appellant
Vs.
Puneet Agarwal and another .....Respondents
File received on assignment on : 17.10.2015
Arguments heard on : 23.10.2015
Judgment announced on : 23.10.2015
JUDGMENT :
1. This appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 ( In short 'the D.V. Act') has been preferred by the appellant aggrieved by the order dated 15.09.2015 passed by Ld. MM, Mahila Court, NorthWest, Rohini Courts Delhi whereby respondent no. 1 was directed to pay maintenance of Rs. 12,000/ to the petitioner on the same terms as decided by Ld. Principal Judge, Family Court.
2. Sh. V K Jain, Ld. Counsel for appellant has challenged the impugned order on the ground that the appellant neither gave her consent nor no objection to the grant of maintenance in terms of the Crl. Appeal No.74/15 Page 1 of 5 Sonal Agarwal v. Puneet Agarwal order of the Family Court. The same has been wrongly mentioned in the impugned order of the trial court. Ld. Counsel has further contended that Family Court decided the interim application u/s 24 of the Hindu Marriage Act, 1955 (in short 'HMA') on 15.11.2014. However, after the said decision, the High Court of Delhi on 14.1.2015 has passed the judgmentKusum Sharma v. Mohinder Kumar Sharma and, consequently, the parties have to file their respective affidavits of assets, income, expenditure and liabilities in the prescribed format. They have also been directed to file ITRs for three years for the fixation of the maintenance. Ld. Counsel has placed on record copy of the said order passed by the Family Court. According to him, in view of the said judgment of the High Court, trial court should have decided the interim application for maintenance under the D. V. Act on merits. He has drawn my attention to the various ordersheets of the trial court.
3. I have considered submissions of Sh. V K Jain, Ld. Counsel and have gone through the trial court record.
4. It is not in dispute that vide order dated 15.11.2014 passed by Ld. Judge, Family Court, Rohini Courts, Delhi, the income of the respondent no. 1 has been assessed to be around Rs25,000/ pm. The respondent has been ordered to pay interim maintenance of Rs.12000/ per month from the date of filing of the petition till its disposal.
5. Order dated 23.3.2015 of the trial court reflects that the Crl. Appeal No.74/15 Page 2 of 5 Sonal Agarwal v. Puneet Agarwal said order of the Family Court has been challenged by the appellant before the High Court of Delhi.
6. A perusal of the impugned order shows that the appellant gave her no objection in case the interim application under the D. V Act is decided in the terms of the order passed by the Family Court. The oral admissions made by the parties can be taken into consideration by the court while deciding the interim application. This Court is bound to accept the statement of the Ld. Trial Judge recorded in impugned order as to what transpired in the Court. The statement of the Ld. Trial Judge cannot be allowed to be contradicted by the statements at the Bar or by affidavit and other evidence. The statement of the Trial Court that something was done, said or admitted before her, has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the order of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If the appellant thinks that the happenings in the Trial Court have been wrongly recorded in the impugned order, the proper course for her, while the matter is still fresh in the mind of Ld. Trial Judge, to call the attention of the Ld. Trial Judge who has made the record to the fact that the statement made with regard to his version was a statement that had been made in error. That is the only way to have the record corrected. If Crl. Appeal No.74/15 Page 3 of 5 Sonal Agarwal v. Puneet Agarwal no such step is taken, the matter must necessarily end there. Thus, in view of the above referred discussion, it cannot be accepted that no such admission was made by the appellant before the Trial Court. Though not referred to or relied upon, for taking this view I am supported with the judgment State Vs. R. S. Naik, AIR 1982 SC 1249.
7. Even otherwise, it is the settled law that the DV Act does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing rights of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed an application under Section 24 of the HMA and after adjudication the income of the husband has been assessed and the maintenance has been determined by competent court, she does not have a right to claim additional maintenance under the D.V. Act. The court of MM under the DV Act has power to grant maintenance and monetary reliefs in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr. P. C., If a woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr. P. C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the DV Act by way Crl. Appeal No.74/15 Page 4 of 5 Sonal Agarwal v. Puneet Agarwal of an application of interim or final nature to grant additional maintenance. Though not referred to or relied upon, for taking this view I am supported with judgment of our Delhi High Court reported as Rachna Kathuria Vs. Ramesh Kathuria, 2010 (118) DRJ 630. The order passed by the Family Court is already under challenge before the High Court of Delhi.
8. Considering the facts and circumstances of the case, I am of the opinion that the appeal has no merit and, hence, the same is hereby dismissed in limine. Trial Court Record be sent back with a copy of the judgment and appeal file be consigned to Record Room.
Announced today (Praveen Kumar) in open court on 23.10.2015. Special Judge (PC Act), CBIIII, Rohini Courts, Delhi.
Crl. Appeal No.74/15 Page 5 of 5 Sonal Agarwal v. Puneet Agarwal