Delhi District Court
Pradeep Aggarwal vs Ms Veshali Gupta on 15 May, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 48/13
Unique case ID No. 02404R0081862013
Pradeep Aggarwal
S/o Sh. Om Prakash Aggarwal
R/o 240, Sainik vihar,
Pitampura, New Delhi
....................Appellant
Versus
1. Ms Veshali Gupta
D/o Sh. Om Prakash Gupta
2. Baby Pearl Aggarwal
D/o Sh. Pradeep Aggarwal
Both R/o B4/63, Ground Floor,
Paschim Vihar,
New Delhi110063
....................Respondents
Date of institution of the case: 23/03/2013
Arguments heard on: 14/05/2013
Date of reservation of order: 14/05/2013
Date of Decision: 15/05/2013
JUDGMENT
This is a criminal appeal filed U/s. 29 of Protection of Women from domestic Violence Act, 2005 against interim order dated 01/08/2012 and subsequent order dated 18/02/2013 passed by the learned Trial Court.
In brief, in a petition filed U/s. 12 of the Protection of Women from Domestic Violence Act, 2005, vide order dated 01/08/2012, passed on CA No. 48/13 1/6 interim application filed U/s. 23 of the Protection of Women from Domestic Violence Act, 2005, filed by the present respondent No.1, the learned Trial Court directed the present appellant to make payment of Rs. 60,000/ per month i.e. Rs. 30,000/ for the complainant/petitioner and Rs. 30,000/ for the minor daughter including rental charges for alternative accommodation, towards the maintenance till the final decision and further directed to clear the arrears of maintenance within three months from the date of order. Meanwhile, the present appellant moved application U/s. 25 of PWDV Act for modifying the order dated 01/08/2012 on the ground of reduction in his pay structure. Vide impugned order dated 18/02/2013, the learned Trial Court dismissed the said application.
The impugned orders have been challenged on various grounds. It is contended that both the impugned orders passed by the learned Trial Court are not based on material brought on record and were passed only on the basis of surmises and conjectures. It is further contended that learned MM failed to come to the conclusion as to whether any domestic violence has been committed by the appellant on respondent. It is further contended that learned MM failed to appreciate the fact that complainant has failed to substantiate her allegations and has made omnibus claims and no fixed relief has been prayed by the complainant/respondent in her main petition U/s. 12 of PWDV Act, hence, no amount should have been awarded to her. It is further contended that learned MM failed to consider that respondent No.1 did not make any full and fair disclosure about her income, assets and liabilities. It is further contended that learned MM did not take into consideration the actual financial condition of the appellant and has failed to consider the fact that appellant has CA No. 48/13 2/6 to look after his family members. It is further contended that learned MM failed to appreciate the fact that appellant moved application U/s. 25 of PWDV Act in a bonafide manner and documents alongwith the same were produced as and when the same were received from his employer. It is further contended that learned MM failed to appreciate that the income of appellant was to be his cash in hand and not his gross pay. It is further contended that impugned order and the subsequent order be set aside.
I have heard learned counsel for the appellant, learned counsel for the respondent and have gone through the TCR.
By this appeal, two orders have been challenged. One is dated 01/08/2012 and another is 18/02/2013. Vide order dated 01/08/2012, the learned Trial court directed the appellant to pay Rs. 60,000/ i.e. Rs. 30,000/ for the respondent and Rs. 30,000/ for the minor daughter including rental charges for alternative accommodation from the date of filing of the application till final disposal of the case.
The order dated 01/08/2012 was challenged and vide order dated 31/10/2012 of Ms. Illa Rawat, learned Additional Sessions Judge, North West, the appeal was dismissed as withdrawn with liberty to file fresh appeal after disposal of the application of the appellant for modification of the impugned order dated 01/08/2012.
Thereafter, an application for modification of the order was filed and vide order dated 18/02/2013, the learned Trial court after considering the payslips of the appellant for the month of December, 2011 and June, 2012, observed that the appellant got increased the voluntary deductions, which has resulted into deduction of salary received by the appellant in hand. The sole CA No. 48/13 3/6 purpose behind the same is to avoid the payment of maintenance. Accordingly, application was dismissed.
Now, this combined appeal has been filed. Earlier in order dated 01/08/2012, the learned Trial Court did not consider the Income Tax Returns filed by the respondent only on the basis that the same were refused by the complainant. Internet computer generated documents were also not relied upon by the learned Trial Court, so, the affidavit of the complainant was not disbelieved and the learned Trial Court further relied upon payslip of December, 2011, and awarded the maintenance of Rs. 60,000/.
In the modification application, the appellant has relied upon the payslip of June, 2012.
According to the salary slip of June, 2012, of the appellant, his basic salary is 62,700/ only with special allowance of Rs. 14,469/ and the VPF contribution is Rs. 45,771/. Earlier, appellant was receiving HRA, which he is now not receiving and further, special allowance has been decreased from Rs. 41,486/, as shown in the payslip of October, 2011, to Rs. 14,469/, as shown in the payslip of June, 2012.
According to these payslips, earlier VPF contribution was Rs. 15,184/ and now, it is Rs. 45,771/, so, certainly, it has been increased more than the necessary amount as per rules. So, at the most, the learned Trial Court could have considered the basic salary, special allowance and reasonable VPF contribution, which was found in excess to Rs. 15,184/ as earlier was being deducted and after other deductions of income tax etc. So, at the most, the salary of the appellant was coming less than Rs. one lac.
During the course of arguments, certain documents have been CA No. 48/13 4/6 placed on record by the respondent regarding her statement of account, credit card details etc. The bank account is showing the balance of Rs. 26, 47, 340/, details of which have not been explained. The respondent is also paying LIC premium of Rs. 50,442/ and there is amount in PPF account to the tune of Rs. 609026/. There are deposits at various intervals in the bank account of respondent and all these, she is maintaining in the different name of Veshali Gupta, whereas in the case, her name has been shown as Veshali Aggarwal. No satisfactory explanation has been given regarding internet generated documents and merely the documents have been denied.
In the appeal, learned counsel for the appellant has pointed out certain expenditure in Para8P of the appeal, which have not been considered by the learned Trial Court at that time.
It is stated during the course of arguments that certain amount of maintenance has been paid during the proceedings in the learned Trial Court.
Considering the above facts and circumstances, the learned Trial Court wrongly overestimated the salary of the appellant and simply believed the denial of the complainant. In the subsequent order dated 18/02/2013 also, even if the learned Trial Court was of the opinion that VPF contribution was increased drastically, then the same could be considered after deducting the necessary amount and the actual amount could have been considered i.e. net salary, which seems to be lower than the previous salary slip, hence, there was no occasion to dismiss the application. The appellant has stated during the course of arguments that he is ready to pay the maintain the child but the earnings of the complainant be also considered, while fixing the amount of maintenance. Details of expenditure of the minor child, who is stated to be CA No. 48/13 5/6 five years, have not been produced before the Court at any time, although it is alleged that she is school going, however, the minor daughter is to be maintained by the appellant and also by the respondent, if she is earning, so, considering the above facts and circumstances, order regarding maintenance, as awarded by the learned Trial Court of Rs. 30,000/ for the minor daughter is maintained. However, the part of the order dated 01/08/2012 is set aside regarding awarding of maintenance of Rs. 30,000/ to the complainant and also the subsequent order dated 18/02/2013 is also set aside being illegal and improper and passed without proper consideration of the documents of the parties.
Learned Trial Court is directed to hear both the parties afresh and decide the interim maintenance of the complainant after considering the documents of both the parties. The maintenance, as awarded for minor child of Rs. 30,000/ as interim measure will continue as interim measure and the appellant will clear the arrears of the maintenance, as awarded to the minor daughter, within three month. Previous payments be adjusted against the arrears of maintenance of minor child. The appeal is disposed of with the above observation.
TCR be sent back with the copy of the order.
Parties are directed to appear before the learned Trial Court on 17/05/2013.
Appeal file be consigned to record room.
Announced in Open Court on (Virender Kumar Goyal)
dated 15th of May, 2013 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CA No. 48/13 6/6
CA No. 48/13 7/6
CA No. 48/13 8/6