Delhi District Court
Harshit Gupta vs Aanchal Gupta on 4 May, 2023
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Appeal No. 95/2021
CNR No. DLCT01-014291-2021
Harshit Gupta
S/o Shri Vijay Gupta,
R/o B-185, Upper Ground Floor,
Derawal Nagar, Delhi. .....Appellant
Versus
Aanchal Gupta
W/o Shri Harshit Gupta,
D/o Shri Ram Charan Tayal,
R/o E-24, Satyawati Colony,
Phase-3, Ashok Vihar, Delhi.
Presently residing at:
House No. 879/1, Kedar Building,
Ghanta Ghar, Subzi Mandi, Delhi. ....Respondent
Reserved on : 13.12.2022
Pronounced on : 04.05.2023
JUDGMENT
This order shall dispose of an appeal preferred by the appellant-husband, under section 29 of Protection of Women from Domestic Violence Act, 2005 (in short 'DV Act') for setting aside order dated 24.09.2021 passed by the learned Metropolitian Magistrate-03, (Mahila Court), Central District, Tis Hazari Courts, Delhi, in Complaint Case No. 542904/2016, titled as "Aanchal Gupta vs. Harshit Gupta", whereby the appellant was directed to pay interim maintenance at the rate of rupees 25,000/-
C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 1 to the aggrieved person-wife and rupees 25,000/- per month to their minor child, from the date of filing of the petition till its final disposal or till their entitlement.
Submissions
2. Mr. Neeraj Gupta, learned counsel appearing for the appellant has submitted that the properties belong to father of respondent no. 1. The learned Magistrate has wrongly assessed the income of respondent no. 1 to be rupees 1,00,000/- per month based on guesswork without taking into consideration of the actual facts and pleadings. The respondent is working at her own Saree Shop in the name of FabriCouer, Nai Sarak, Chandni Chowk, Delhi but the learned Magistrate failed to take into consideration the list of documents along with bills etc. and other relevant material in relation to said saree shop. The respondent has concealed her true income from the Court of Ms. Kiran Gupta, learned Additional Session Judge, Rohini Court, Delhi and when appellant brought the fact to the knowledge of the said Court, then maintenance of the respondent was cancelled.
3. Mr. Gupta has further submitted that the appellant has filed application under section 91 of the Code of Criminal Procedure, 1973 (in short 'CrPC') before learned Magistrate and without disposing off the said application, impugned order has been passed. The learned Magistrate should have direct the respondent to file documents, records and details mentioned in said application and thereafter, application for interim relief moved by the respondent should have been disposed off. The learned counsel has requested to remand back the matter to the learned Magistrate.
C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 2
4. Mr. Gupta has further submitted that the learned Magistrate has failed to take into consideration the expenditures and deductions of the appellant and the same would cause extreme financial hardship to the appellant. The appellant had been paying a monthly maintenance amount of rupees 10,000 per month to the respondent in her bank account and the said amount is not used by the her by withdrawing the same. The respondent is residing in the house of the appellant's father and hence, she is not required to pay any rent for her or the minor child's accommodation and further the electricity bills are also paid by the father of the appellant.
5. Mr. Gupta has further submitted that the respondent has not filed her true and fair affidavit and has mentioned exaggerated expenditure just to extort illegal money from the appellant. Their is heavy expenditure of more than rupees 4,00,000/- per month of the respondent without disclosing its true source and filing relevant documents in this regard. The respondent in her income affidavit has mentioned that she is incurring an expenditure of rupees 4,01,700/- monthly on herself and the minor son which comes to rupees 48,20,400/- annually, however she has not filed any relevant documents/bills with regard to above mentioned expenditures. The respondent has not mentioned any car in her income affidavit, whereas she has filed fuel and maintenance bills along with her income affidavit and further she is paying rupees 20,000/- to her driver, rupees 10,000/- towards fuel and rupees 30,000/- towards petrol and insurance every month. The respondent is withdrawing rupees 40,000/- per month from her bank account and incurring expenditure of rupees 4,01,700/- monthly however she has not filed the income tax return and C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 3 other relevant records of the person or the other source of her income from where she is incurring rupees 48,20,400/- annually on her expenditure. The respondent in her income affidavit stated that she had rupees 1,00,000/- per month as "Cash in Hand", however, she has not declared as to where she is receiving such a huge amount and did not file any documents in that regard. The case of Sabina Sahdev & Ors. v. Vidur Sahdev, 2018 SCC Online Del 9747 and has been relied upon.
6. Per contra Mr. K. D. Sharma, learned counsel appearing for the respondent has opposed the appeal and has submitted that the respondent has filed appeal against impugned order also for enhancement of interim maintenance before this Court.
Analysis and Conclusions
7. In the present case, issue of interim maintenance is to be considered. In case of Rajnesh v. Neha & Ors., Criminal Appeal No. 730 of 2020 decided on 04.11.2020, Hon'ble Supreme Court has laid down criteria for determining quantum of maintenance, which is as follows:
"III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that the dependant 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 dependant 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 C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 4 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. [Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7] In Manish Jain v Akanksha Jain, (2017) 15 SCC 801 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.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant 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 spiralling 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. [Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303]
(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. [Chaturbhuj v Sita Bai (2008) 2 SCC 316] 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 meagre 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.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 5 claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde 140 (2007) DLT 16 laid down the following factors to be considered for determining maintenance :
"1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17."
(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 6 industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.
(b) Right to residence Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) 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.
The right of a woman to reside in a "shared household"
defined under 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. This Court in Satish Chander Ahuja v Sneha Ahuja (supra) held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a 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. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the 38 Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020. 42 respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 7 husband. The Courts have provided guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna, (2018) 12 SCC 199 this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. [Chaturbhuj v Sita Bai, (2008) 2 SCC 316]. Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252] In Sunita Kachwaha & Ors. v Anil Kachwaha (2014) 16 SCC 715 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale 2020 SCC OnLine Bom 694 while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander Prakash, AIR 1968 Delhi 174. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan (2015) 5 SCC 705 cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 8 amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance."
[underlines are mine]
8. Hence, section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved person and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved person was accustomed to in her matrimonial home. If the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. Merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. It should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 9 be shared proportionately between the parties. Any independent source of income of the aggrieved person and sufficiency of the said income to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home, are also required to be considered in granting maintenance. The financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant 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.
9. The respondent, a wife of appellant, is aggrieved person who has filed application under section 12 of the DV Act against the appellant and others before learned Metropolitan Magistrate wherein she alleged several acts of domestic violence being committed by the appellant against her.
10. It is admitted that the appellant and the respondent are husband-wife, and out of their wedlock one child is born who is minor at present. I donot find merit in the submission of learned counsel for the appellant that matter may be remanded back directing the learned Magistrate for deciding the application under section 91 of the CrPC moved by the appellant first and thereafter, deciding interim application of the respondent because interim maintenance can be granted even ex-parte as per section 23 (1) of the DV Act. The appellant has himself submitted that he is paying rupees 10,000/- per month to the respondent. Further, how it can be said at this stage that the said application under section 91 of the CrPC will be decided in favour of the appellant.
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11. The stand of the appellant is that he is an employee in Panna Lal & Company and his income is rupees 65,000/- but same has been wrongly assessed to be rupees 1,00,000/-. As per the respondent the income of the appellant is 25,00,000/- per month. The appellant has filed ITRs for three financial year 2017-18, 2018-19 and 2019-20 wherein his annual income is rupees 6,66,78/-, rupees 09,49224/- and rupees 07,93,846/- respectively as mentioned in impugned order. But, learned Magistrate has presumed his income to be rupees 1,00,000/-. It is well settled that some guess work is permissible while estimating the income of the appellant when all the sources or correct sources are not disclosed. The objective of granting interim maintenance is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage. In my view, where appellant in the instant case, has shown his monthly income to be rupees 65,000/-, but as per the respondent monthly income of the appellant is rupees 25,00,000/- the learned Magistrate after guess work same has been been rightly presumed to be rupees 1,00,000/- and rightly awarded maintenance of rupees 25,000/- to the respondent and rupees 25,000/- to their minor child. The both parties can prove their respective stand qua income of opposite party by leading evidence at appropriate stage before learned Magistrate. The impugned order has been passed on interim application and has not been passed finally after disposing application under section 12 of the DV Act. It cannot be forgotten that in Rajnesh (supra) it is observed that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband and further that merely because the wife was earning some income, it could not C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 11 be a ground to reject her claim for maintenance. I have taken into consideration all the aspects/submissions of the parties in deciding the appeal. Hence, appeal is dismissed.
12. The observations made in the order is only for deciding this appeal and shall not have bearing on merits.
Digitally signedDated: 04.05.2023 SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2023.05.04
14:44:16 +0530
(Sanjeev Kumar-II)
Special Judge (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
C.A.No.95/2021 Harshit Gupta v. Aanchal Gupta 12