Delhi District Court
Rahul vs Ms. Seema on 28 January, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 145 of 2020
CNR No. DLSE01-003060-2020
IN THE MATTER OF:
Rahul,
S/o Sh. Vadpal
R/o House No. 124A,
in front of Sector-29,
Kisan Majdoor Colony, Faridabad.
.......Appellant
Versus
Ms. Seema,
W/o Sh. Rahul
D/o Sh. Dalbir Singh
R/o I-123 6D, Ground Floor,
Lal Kuan, Jaitpur, South Delhi-110044.
........Respondent
Instituted on : 23.09.2020
Reserved on : 27.01.2022
Pronounced on : 28.01.2022
JUDGMENT
1. Vide this appeal, appellant takes exception to the order dated 04.08.2020, passed by the learned Metropolitan Magistrate-01, Mahila CA No. 145/ 2020 Rahul Vs. Seema Page No. 1 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:35:16 +0530 Court, South-East District, Saket Courts, New Delhi in case bearing CT No. 637051/2016 titled as Seema Vs Rahul, filed under provisions of Domestic Violence Act, whereby appellant/husband was directed to pay an interim maintenance of Rs.4,500/- per month to respondent/wife from date of filing of petition i.e. 21.11.2016 till disposal of present petition under DV Act or till the respondent is legally entitled to receive the same.
2. Brief facts may be taken note of: A complaint under section 12 of Domestic Violence Act was filed by respondent/wife Seema with the averments that she is legally wedded wife of the appellant and the marriage between the parties got solemnized on 07.12.2014 at Delhi. No child was born out of said wedlock. As per respondent/wife, she was subjected to domestic violence by appellant and his family members. As per respondent/wife, she has been sustaining herself with great hardships and thus, she claimed interim relief of maintenance from appellant.
3. Vide impugned order, Ld Trial Court while deciding the application for interim relief, observed as follows:-
"Though, the complainant has claimed that respondent No.1 is working at a gym center and is running a food business and earning Rs.30,000/- per month, however, she has failed to file any documents in support of her claim. Further, contrary to her claim in first affidavit of income and assets that respondent no.1 is 10 th pass, in her second affidavit she has claimed that respondent no.1 in his income affidavit disclosed that he is 10 th pass. In view of contrary claims of complainant, this court is constrained to rely on the version of respondent no.1 that he is 10th pass. Since the respondent no.1 is not alleged to be differently abled, he is assumed to be able bodied man and as the aggrieved is the wife of the respondent no.1, it is the legal duty of the respondent no.1 being the husband to maintain her. Assuming the income of respondent no.1 as per the Minimum Wages Act, to be Rs. 14,806/- per month, even if he is unskilled, on the scale of balance of CA No. 145/ 2020 Rahul Vs. Seema Page No. 2 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:35:28 +0530 convenience, and in the absence of respondent no.1 having brought on record the number of family members dependent upon him, it is presumed that only the complainant is dependent upon the respondent no.1 and thus I deem it fit to award sum of Rs. 4,500/- per month to the complainant from the date of filing of the present petition i.e. 21.11.2016 till final disposal or till complainant is legally entitled to receive the same which ever is earlier. This amount shall be adjusted towards any further order and is without prejudice to rights of both the parties in respect of the present case.
Payment of maintenance has to be made on or before 10 th day of each month by depositing the same directly in the bank account of the complainant upon furnishing details of the same by the complainant to the respondent no.1 against acknowledgment. Needless to say that the amount of maintenance paid in any other proceedings shall be adjusted. Interim maintenance application disposed of accordingly."
4. Appellant has filed the instant appeal assailing the impugned order on various grounds which can be summarized as under:-
(i) that the impugned order is not tenable in the eyes of law and same is liable to be set aside;
(ii) that Ld. Trial Court failed to appreciate that appellant has the responsibility to take of his old aged mother having asthma problems as well as other old aged disease;
(iii) that Ld Trial Court failed to consider the facts and circumstances of the case as well as the fact that appellant is not having regular source of income and is unemployed;
(iv) that the award of interim maintenance @ Rs.4500/- per month is exorbitant and unjustified;
(v) that appellant has neither committed any domestic violence nor deserted the respondent and rather he is ready to live with her.
(vi) that the respondent/wife has entered into second marriage;
5. Ld. Counsel for appellant argued on the similar line of grounds as taken in the instant appeal. It was forcefully argued that the CA No. 145/ 2020 Rahul Vs. Seema Page No. 3 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:35:38 +0530 impugned order is not sustainable in the eyes of law as Ld. Trial Court wrongly assessed the income of appellant/husband @ Rs.14,806/- per month as per minimum wages applicable in NCT of Delhi. It was further argued that appellant is a poor man and is currently unemployed. It was argued that appellant has liability of his old age mother and minor brother. It was further argued that Ld Trial Court failed to consider the fact that complainant/wife has not approached the court with clean hands rather concealed and suppressed material facts. It was further argued that respondent/wife has remarried and she is also having a child and thus, she is not entitled for any maintenance. It was argued that respondent/wife is doing the job of Nurse and she is earning Rs.15,000/-. It was further argued that appellant remained unemployed due to pandemic i.e. Covid. It is urged that respondent/wife at her own, left the matrimonial house and as such, appellant/husband is not liable to pay maintenance to her. On the strength of these arguments, appellant seeks setting aside of impugned order.
6. I have heard Ld counsel for appellant and perused the record.
7. At the outset, I may observe that factum of marriage has not been disputed by appellant. The respondent alleged that she was subjected to domestic violence by appellant. However, same has been denied by appellant. It is a settled law that serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during course of trial after parties lead their respective evidence. Since, the respondent/wife has made allegations of she being subjected to domestic violence by appellant, a prima facie case for domestic violence is CA No. 145/ 2020 Rahul Vs. Seema Page No. 4 of 9 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:35:48 +0530 made out in the instant case. Therefore, the observation of Ld Trial Court on this count cannot be faulted with. Similarly, the plea of appellant that respondent/wife has entered into second marriage, cannot be decided at this stage and can only be adjudicated during course of trial when the parties lead their respective evidence. Therefore, the said plea of appellant/husband stands rejected being without any merit.
8. Now the legality of award of interim maintenance @ Rs. 4,500/- per month by impugned order shall be decided by this court. Before considering contentions of appellant/husband, I may mention here that while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial. It is also pertinent to note here that as per the dictionary meaning of the word 'maintenance', it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes. For computing the maintenance, the following tests have been laid down by Hon'ble Apex Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. 1997 (7) SCC 7, wherein it has been observed that:-
"No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is CA No. 145/ 2020 Rahul Vs. Seema Page No. 5 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:36:00 +0530 obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
9. Having discussed the principle of law, I shall now examine whether Ld. Trial Court erred in law (as contended by appellant) by assessing the income of appellant to the tune of Rs.14,806/- per month (as per minimum wages applicable for NCT of Delhi) and awarding monthly interim maintenance @ Rs.4,500/- based thereon or the impugned order is justified in the facts and circumstances of the present case.
10. One of the grounds on which appellant seeks setting aside of impugned order, is that respondent/wife is doing job of Nurse and she is earning Rs.15,000/- per month. However, no such proof regarding earning of respondent/wife was brought on record by the appellant/husband. It was forcefully argued on behalf of appellant that being qualified, respondent/wife is capable of earning and therefore, no maintenance could be awarded to her. This issue is no more ' res integra' in view of settled position of law. Hon'ble High Court of Delhi in case titled as Kanupriya Sharma Vs State & Anr, Crl. Rev. Pet. 849/2018, Crl. M.A. No. 33234/2018, has observed as under :-
"28. Further, it may be seen that claim of maintenance by a wife under section 125 Cr.P.C. is qualified by the expression 'unable to maintain herself'.
29. There are no such qualifying words under the DV Act. Under section 12 of DV Act, an aggrieved person can approach the Magistrate seeking one or more of the reliefs under the DV Act. Under section 20 DV Act, the magistrate has powers to direct Respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any CA No. 145/ 2020 Rahul Vs. Seema Page No. 6 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:36:11 +0530 child of the aggrieved person as a result of the domestic violence and such relief may inter alia include the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 Cr.P.C. or any other law for the time being in force. Under section 20(2) the monetary relief granted has to be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
30. The grant of maintenance under the DV Act has not been made dependent upon the expression 'unable to maintain herself'. Further, the expression ''unable to maintain herself' does not mean capable of earning.
31. In the present case, whether Petitioner is actually earning or qualified and capable of earning are again two different things. As noticed above, no material has been produced by Respondent no. 2 to show that the Petitioner is gainfully employed or receiving any salary and actually earning. The pleas raised by the Respondent no. 2 would be required to be established at trial. Till Respondent no. 2 establishes by leading cogent evidence that Petitioner is gainfully employed and receiving salary, there is no justification to deny maintenance to the Petitioner-wife."
11. In view of aforesaid legal position, plea of appellant/husband that respondent/wife is capable of earning is without any merit. Now coming to the last plea i.e. legality of interim maintenance: Perusal of Trial Court record reveals that respondent/wife filed two income affidavits dated 03.12.2016 and 12.11.2018. In both the affidavits, she claims to be a housewife having no income and dependent upon her father. Income affidavit of appellant/husband also came to be filed wherein he claimed that he is 10th Pass having Zero income being unemployed. He further claims in his income affidavit that none of his family members are dependent upon him. Further, perusal of reply dated 22.05.2017 filed by respondent no.1 to the application of respondent/wife before Ld Trial Court claimed that he is doing job at IGNOU, Maidan Garhi on daily wages of Rs.442/- only. On the other hand, respondent/wife claimed that CA No. 145/ 2020 Rahul Vs. Seema Page No. 7 of 9 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:36:23 +0530 appellant/husband is working at a Gym center and is running a food business thereby earing Rs.30,000/- per month. However, as rightly observed by Ld Trial Court, both the parties failed to bring on record any document in support of their respective contentions. Ld Trial Court keeping in view the fact that appellant/husband is a able bodied person, assumed the income of appellant/husband as per Minimum Wages Act @ Rs.14,806/- per month under category of unskilled. In my considered view, the said approach thereby assessing the monthly income of appellant/husband as per Minimum Wages Act i.e. @ Rs. 14,806/- per month applicable in NCT of Delhi, cannot be faulted with. Reliance is placed upon judgment of Hon'ble High Court in case Khem Chand Vs Bhagwati, Crl M.C. No.812/2016, Crl. M.A No. 3423/2016 dated 22.01.2019, wherein it was held as under :-
"5. The petitioner claims that he is non-matriculate and has no source of income, he having been engaged in earning his livelihood as a driver of three wheeler scooter (TSR) till 2006, cannot be acted upon. He has not disclosed as to how he has been surviving all along. It cannot be believed that a person who was capable of supporting a family by getting married and raising a child would all of a sudden become devoid of all sources of income.
6. It is clear and is evident from the order of the sessions that the petitioner is concealing facts, intentionally withholding information about his income. It is noted that the Metropolitan Magistrate faced with a situation wherein respondents were also unable to muster clear proof, has assumed the income notionally on the basis of minimum wages and on such basis has passed the order of interim maintenance. The approach of the Metropolitan Magistrate in these circumstances cannot be faulted."
12. It is a settled law that a wife is entitled to the same status and life style which she was enjoying prior to severing of relationship. Therefore, interim maintenance has to be commensurate with her needs as CA No. 145/ 2020 Rahul Vs. Seema Page No. 8 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.28 14:36:34 +0530 well as income of her husband. Though the respondent/wife claims the monthly income of appellant/husband @ Rs.30,000, however at present, the said claim of respondent/wife is not supported by any material on record. The exact income of appellant/husband shall be assessed during course of trial only, however in view of the material available on record, the assessment of monthly income of appellant/husband @ Rs.14,806/- (by Ld. Trial Court as per minimum wages applicable in NCT of Delhi) is fully justifiable and cannot be faulted with. It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income. Once the monthly income of appellant/husband is assessed @ Rs.14,806/- per month (as per minimum wages), the award of interim maintenance @ Rs.4,500/-, can by no stretch of imagination said to be unjustifiable or exorbitant keeping in view the 'principle of apportionment' as laid down by Hon'ble Delhi High Court in "Annurita Vohra vs. Sandeep Vohra", 110, (2004) DLT 546 and followed in "Nitin Sharma v. Sunita Sharma", 2021 SCC OnLine Del
694.
13. With these observations, appeal filed by appellant /husband stands dismissed being devoid of any merit.
14. TCR be sent back to Ld Trial Court along with copy of this judgment.
15. Appeal file be consigned to record room after due compliance.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.01.28 14:36:46
+0530
Announced in the open (ANUJ AGRAWAL)
court on 28th January, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
CA No. 145/ 2020 Rahul Vs. Seema Page No. 9 of 9