Delhi District Court
Master Anirudh Aged About vs Sh. Jiban Kumar Nag on 12 November, 2007
1
IN THE COURT OF SHRI D.C. ANAND:
ADDL. DISTRICT JUDGE: DELHI.
Suit No.154/05
1. Master Anirudh aged about
two years
through mother and natural
guardian Smt. Nivedita Nag
son of Sh. Jiban Kumar Nag
r/o D1/C, 43, B, Janakpuri,
New Delhi.
......... plaintiff no.1.
2. Smt. Nivedita Nag,
w/o Sh. Jiban Kumar Nag,
r/o D1/C, 43, B, Janakpuri,
New Delhi.
......... plaintiff no.2.
vs.
Sh. Jiban Kumar Nag,
2
son of late Sachinder Nath Nag,
r/o B54, NTPC Township,
Sector 33, Noida (UP)
and office address for service
Jiben Kumar Nag,
E-2A, Civil Engineering Deptt.
EOC Building NTPC, Sector, 24,
Noida, U.P.
.............. defendant
AMENDED SUIT FOR MAINTENANCE
U/S 18 & 20 OF THE HINDU
ADOPTION & MAINTENANCE ACT
(no.IXXVIII OF 1956)
Date of Institution:18-10-2000
Judgment reserved on:27-10-07
Judgment delivered on:12-11-07
JUDGMENT
1. The plaintiffs filed the petition against the 3 defendant who is husband of plaintiff no.2 and father of minor plaintiff no.1. The plaintiff no.2 is legally wedded wife of defendant married on 14-8- 97 who lived with defendant at Noida till June, 1998 and thereafter on 24-6-98, they moved to their flat at 10B, Pocket C, Mayur Vihar, Phase III, Delhi and continued to live there. The defendant earlier with the help of plaintiff no.2 purchased the said flat on 24-9-98. The plaintiff no.2 was beaten up by defendant at mid night in her third month of pregnancy and finally on 22-10-98, she was sent by defendant to her parents' house at Janakpuri and since then, the plaintiffs are staying with her parents at Janakpuri, Delhi. On 22-2-99, plaintiff no.1 was born at Janakpuri.
2. The parties belong to high status Hindu Bengali families who married according to Hindu rites and 4 ceremonies being Hindus. The father of plaintiff no.2 is drawing a meagre pension of Rs. 3,000/- p.m who was a Government Officer and Master Craftsman, Ministry of Defence. Plaintiff no.2 is working as LDC in Doordarshan and getting a salary of Rs. 4,200/- p.m.
3. Defendant is a qualified engineer working as Senior Engineer (NTPC) Noida Branch and drawing a monthly salary of Rs. 20,000/- besides other allowances and perks whose total salary is Rs. 25,000/- p.m. The respondent is living alone in his official accommodation who sold the jointly acquired three bed room flat at Mayur Vihar, Delhi in March-April, 1999 and thereafter shifted to his official accommodation which is two bed room flat at Noida, U.P where he continued to live till date. The plaintiff further averred that defendant 5 deserted and abandoned the plaintiffs without any reasonable cause and is willfully neglecting them. The plaintiff further submitted that from the erratic/irrational and unpredictable conduct of the defendant as stated hereinbelow, the plaintiffs feel insecure and threatened as it is not known when the defendant might for no cogent reason become violent and in a fit of temper abuse, assault and beat up the plaintiff no.2 and even threaten to cause harm to her infant son. The plaintiff further averred that during her stay in the matrimonial home, the plaintiff no.2 was regularly assaulted by defendant if she resisted from paying her entire salary to him and used it for food and clothing for herself and subsequently after the birth of plaintiff no.1 the defendant has not paid a penny of maintenance to the plaintiffs. It is submitted that 6 the plaintiff no.2 received a sum of Rs. 9,916/- from her office after the revision of pay scales after implementation of the 5th pay commission as arrears of salary in October, 1997, December, 1997 and in January, 1998 and the same was also snatched away by the defendant on the pretext of paying money to D.D.A for the possession of the flat at Mayur Vihar and also for taking water, electricity connection installed at the flat. The plaintiff averred that for the first time on 12-5-98, the defendant in a fit of anger in a drunken state turned the plaintiff no.2 out of the house at 10.30 p.m and the plaintiff no.2 left her matrimonial house from Noida, U.P in the early hours of the morning and reached her parents home at Janakpuri, New Delhi with the help of friends as she had no money and for seven days, thereafter 7 the defendant did not bother to find out about the plaintiff's welfare. The plaintiff submitted that thereafter the defendant abandoned the plaintiff no.2 without any reasonable cause against her wishes and has been willfully neglecting her time and again for no fault of her.
4. Defendant neglected the plaintiff during her pregnancy period and she was forced to leave her matrimonial home to be looked after by her parents at Janakpuri where also the defendant did not pay any hospital charges for the delivery of the plaintiff no.1 and the father of plaintiff no.2 paid the amount of Rs. 15,000/-.
5. The brothers and sisters of the defendant are settled outside Delhi as he belongs to Jalpaiguri, where his relatives reside.
6. When the defendant was informed that he had 8 been blessed with a child, the defendant did not come to see his child and also did not bother to take care or look after the child and plaintiff no.2 for no fault of theirs and as such, neglected them constantly. The plaintiff further stated that on 24- 9-98, the defendant beat up the plaintiff no.2 mercilessly as she had told him that she was not feeling well and if he could get something to eat from the market and ignoring the fact that she was pregnant, the defendant kicked plaintiff no.2, punched her, pushed her hard against the wall, pulled her hair and dragged her on the floor and after satisfying himself with the merciless beating, he left the house at around 8-30 p.m by locking the door from outside. Plaintiff submitted that there was nobody around whom the plaintiff could reach for help and she was apprehensive and kept 9 waiting for the defendant to return.
7. The defendant after few months of marriage, started insulting and humiliating the plaintiff in front of his friends and relatives thereby causing great mental torture and agony who also started drinking heavily and wanted the plaintiff no.2 to get a considerable amount of money from her father for paying for the flat at Mayur Vihar. The humiliation, mental pain and agony affected the physical health of the plaintiff no.2. Plaintiff no.2 tolerated the defendant as she did not want to break up her home because of her infant minor son. The father of the plaintiff no.2 also made expensive gifts to the plaintiff.
8. The defendant stopped giving any money to the plaintiff no.2 for her daily household and to meet her basic need, she received Rs. 20,000/- from her 10 father/relatives for medical expenses and hospital expenses of her minor child i.e plaintiff no.1.
9. The plaintiff no.2 was forced to sign the papers for divorce in the month of January, 2000 by mutual consent as the defendant threatened that in case she did not sign the divorce papers, he would be filing a case for divorce against her unilaterally on 17-12-99. To the knowledge of plaintiff no.2, no such divorce petition was filed as also no summons were received by her. The plaintiff no.2 tried to reason with the defendant but the defendant was all along adamant not to keep the plaintiffs. They have no other source to support herself and plaintiff no.1. The plaintiff no.2 has incurred huge expenses for medical treatment of her son and the defendant has paid nothing. The defendant abandoned the plaintiffs to satisfy his selfish ego 11 and has willfully neglected them who also treated plaintiff no.2 with cruelty and as such,to live with the defendant was harmful. The plaintiff also detailed the expenses incurred by her under different heads. The money has to be borrowed from friends and relatives which is humiliating for her. The monthly expenditure of the plaintiffs on food and clothing is stated to be Rs. 9,600/- p.m. The defendant has ancestral property at Jalpaiguri besides drawing salary of Rs. 25,000/- p.m and kept the entire sale proceeds of Mayur Vihar flat. The plaintiffs as such, have prayed for passing a decree for maintenance in their favour and against the defendant.
10. The defendant contested the petition on the ground that on the first night of the marriage, the defendant discovered that plaintiff no.2 was a 12 stubborn, arrogant lady with an adamant mind but thought that with the passage of time, she would change and the marriage would work with mutual adjustment. The plaintiff no.2 also raised objections that defendant was staying far away from her place of work without any transportation available and found reasons to go and stay with her parents at Janakpuri. The plaintiff no.2 was also actively involved in production work in Doordarshan which she was undertaking privately for various satellite channels and Doordarshan. As a result, she used to come home very late at night and at times, never used to come at night and used to come only in the morning. Thereafter, she started remaining away from the house for days together and on objection, she replied arrogantly " I am a working woman and you have no business to ask me my whereabouts". 13 In fact, she never stayed for more than 10 days in a month with the defendant. This behaviour of the plaintiff caused a lot of mental tension to the defendant. She would refuse to cook for the defendant whenever she used to come to the matrimonial house and would cook only for herself. She also inflicted physical injury on the defendant when the defendant was washing the dish because the defendant dared to wash the dish in which she had cooked for herself. The defendant was accordingly not only mentally harassed but was also harassed physically as there were such incidents for no reason whatsoever. The defendant came to know from the mother of the plaintiff no.2 on 12-7-98 that plaintiff no.2 had conceived and was pregnant. The defendant was very happy to know that and thought that things would change 14 for betterment. The plaintiff no.2 left for her parents house and never came back and also refused to come back when efforts were made by the defendant.
11. The defendant was covered for all medical expenses under the company rules and as such, he made efforts to take the plaintiff no.2 to a doctor (Gynecologist) for her examination but the plaintiff no.2 refused to go with the defendant. She even refused to part with the name of the doctor to whom she was visiting. The defendant was so mentally charged by the attitude of the plaintiff no.2 which forced him to write letter dt. 27-11-98 as also the plaintiff no.2 refused to meet and talk to him on phone. The defendant was conveyed of nursing home where the plaintiff was admitted for delivery and gave birth to a child i.e plaintiff no.1 15 where the defendant spent two nights though unwelcomed forcibly.
12. After the birth of the child, the defendant made number of efforts to bring back the plaintiffs through the help of relations and friends but the plaintiff no.2 was adamant not to resume the society of the defendant as she was more interested in inflicting mental and physical pain on the defendant.
13. Plaintiff no.2 and her parents also started threatening the defendant to involve him in criminal cases. Under the threats and coercion, the defendant was forced to handover all the dowry articles on 14-12-99 who was also forced to part with his personal dowry as well. The articles were taken from the defendant after executing a proper inventory receipt. The defendant was also forced to 16 pay Rs. 35,000/- as the expenses on grounds of settling all issues and signing the mutual divorce papers. All reconciliation efforts made by relations and friends to sort out the mess failed. The plaintiff no.2 was bent upon to ruin the matrimonial house and as a result, it was agreed between her and the defendant to dissolve their marriage by mutual consent. A petition under Section 13 (b) was also filed in the U.P court at Gauam Budh Nagar. The parties also appeared before the Ld. Sr. Civil Judge, Gautam Budh Nagar for hearing on 18-2- 2000 which was the first motion where the parties supported the contents of the petition of mutual divorce. However, after six months, when the second motion was moved, the plaintiff no.2 started and pressurising the defendant to make a statement to the effect that defendant would have 17 no claim over the plaintiff no.1 and would also have no visiting right over the child to which the defendant did not give his consent. Thereafter, the defendant received the summons of the present case which facts according to defendant are misleading as the plaintiff no.2 did not live with the defendant at NTPC Noida till June, 1998 who used to go and stay with her parents for days together completely forgetting her duties as a wife. The defendant also denied that they moved to flat at Mayur Vihar on 24-6-98 for living there as the defendant after renovation of flat did shift to that flat on 14-6-98 but on the very next day, left the flat for her father's house and returned back only on 21- 6-98 when again she left against the wishes of the defendant. The defendant also fell seriously ill in the office and despite information to the plaintiff 18 no.2, she did not bother to come home and look after the defendant. The health of the defendant also deteriorated who was forced to leave Delhi on 12-9-98 for his home town. After return, the defendant requested the plaintiff to return to the matrimonial house on 2-9-98 on phone. The defendant also denied averments with regard to flat as the flat was bought by the defendant after arranging loan from his company, his friends and relatives as well as provident fund.
14. The plaintiff no.2 did join the defendant on 5-9- 98 but with the condition that she would not cook for the defendant nor would allow defendant to stay in the same room where the plaintiff would stay. The defendant agreed to the conditions for the sake of new member who was born in the family.
15. Not only the plaintiff no.2 misbehaved with the 19 defendant but she also misbehaved with his other family members when they came to him in October, 1998 from Jalpaiguri. The defendant denied that plaintiff was ever sent to her parents house by him. The plaintiff no.2, however, allowed the defendant to meet their son only four times since his birth but without any consultation regarding the wellbeing of the child.
16. The defendant denied that plaintiff no.2 belongs to such a high status Hindu family as she comes from a lower middle class ordinary family whose father retired from government office as motor mechanic (IVth grade employee) in Central Vehicle Depot (CVD) of Delhi Cantt.
17. The defendant also admitted that plaintiff is living in two bed room flat which was purchased from the proceeds of a plot procured at throw away 20 price from the Government of India and was sold at a handsome price.
18. The elder sister of the plaintiff no.2 who was married in 1985 is also residing separately from her husband since June, 1998 in the house of her father along with plaintiff no.2 with her children.
19. The defendant denied that plaintiff is earning only Rs. 4,200/- p.m as she is earning about Rs. 35,000/- being actively involved in production of films, serials etc which fact has been suppressed by the plaintiff. The defendant averred that he is drawing Rs. 10,000/- after all deductions from NTPC where he is working as qualified engineer and residing in official accommodation. Joint ownership of the flat at Mayur Vihar with plaintiff no.2 is also denied by the defendant which the defendant decided to sell to pay the entire loan. 21
20. The defendant denied that plaintiff no.2 was deserted or abandoned or willfully neglected by him. In fact, converse is alleged that too without any reason or cause and efforts to bring back the plaintiffs to the matrimonial house. The defendant was stated to be insecure and scared with the plaintiff no.2. All other averments as made by the plaintiff were denied by the defendant. The defendant also stated that he left Rs. 10,000/- with the mother of plaintiff no.2 to meet the medical expenses of plaintiff no.1 which were later on returned to the defendant. The defendant also denied that he was never present or saw the child at the time of delivery of the child or bothered to take care of the child. Defendant also denied that he ever gave beating to plaintiff when she was pregnant. Defendant also denied any threats of 22 mutual divorce or the efforts by plaintiff no.2 to reconcile with the defendant to save the marriage. The defendant further submitted that he performed all his duties as husband and as a father of plaintiff no.2 and 1 respectively by offering help in their medical expenses but plaintiff no.2 refused to take his help and it was difficult for the defendant to keep pestering her to take financial help from the defendant. Defendant denied any treatment with cruelty with plaintiff no.2 which may be harmful for her to live with the defendant. On these pleas, the defendant stated that plaintiffs are not entitled to any maintenance.
21. The plaintiffs filed replication wherein they assailed the allegations as made in the written statement while reaffirmed the averments of the petition in toto.
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22. On the basis of the pleadings of the parties, the following issues were framed on 8-3-02:-
1. Are the plaintiffs entitled for maintenance?
2. Are the plaintiffs entitled to seek reimbursement of medical expenses from the defendant?
3. To what amount if any of the two plaintiffs entitled by way of maintenance from the defendant?
4. Relief if any?
23. The plaintiff no.2 examined herself while the defendant filed an affidavit in evidence and examined as RW1 as well as Sh. P.H. Choudhury as DW 2 whose affidavit was also tendered under Order 18 R 4 CPC.
24. I have heard Ld. counsel for the plaintiffs as well as defendant in person and have perused the evidence, the documents on record carefully. 24
25. It is pertinent to mention that vide order dt. 14- 1-03, their Lordship while setting aside the orders passed on interim maintenance by this court awarded interim maintenance to both the petitioners as fixed amount of Rs. 5,000/- p.m i.e Rs. 3,000/- p.m for petitioner no.1 and Rs. 2,000/- p.m for petitioner no.2 from the date of application dt. 19-10-2000 with direction to pay the arrears within one month before this court who shall also continue to pay it by 10th day of each succeeding month either by bank draft or cash. The defendant has paid Rs. 1,20,000/- to the plaintiff no.2 as deposed in the affidavit and as stated Rs. 2.5 lacs during cross examination.
26. My findings on the issues are as under:-
ISSUES NO.1 AND 2.
27. These issues are taken up together being 25 interconnected one.
28. Ld. counsel for the plaintiff submitted that under Section 18 and 20 of The Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act 1956), both the plaintiffs/ petitioners are entitled to have maintenance from the defendant being a Hindu wife and legitimate son and being minor of the defendant respectively. The plaintiff no.2 is also entitled to live separately from defendant without forfeiting her claim to maintenance as is the case in hand as the plaintiffs are able to prove that it was defendant who deserted/ abandoned the plaintiff no.2 without reasonable cause and without her consent as also against her wish by willfully neglecting her from the first day of her marriage with the defendant as the defendant himself pleaded that plaintiff no.2 26 was stubborn, arrogant lady with an adamant mind as discovered by the defendant. The pleadings as above by the defendant are not specific as to on what basis defendant discovered that behaviour of the plaintiff no.2 on the first night of the marriage. Unexplained discovery regarding the behaviour and character of the plaintiff no.2 by the defendant leads me to the conclusion that discovery of the defendant is baseless and without any grounds. Similar is my observation with regard to letter exhibited as mark X dt. 27-11-98 as was admittedly written by defendant to the plaintiff of which receipt is also proved as Ex. PW 1/D2 on which much reliance has been placed by the defendant. This letter also contains allegations of such behaviour of the plaintiff no.2. More so, final departure of the plaintiffs from the house of the 27 defendant after execution of the document proved as Ex. PW 1/D3, Ex. PW 1/D4, Ex. PW 1/D5 and Ex. PW 1/D6 dt. 14-12-99 in itself speaks of volume of dispute between the parties. Vide these documents, all the dowry articles were taken back by the plaintiff no.2 who also received Rs. 35,000/- vide cheque from the defendant as part of expenses of plaintiff no.2 incurred during stay and for settling all issues and also signing mutual agreed divorce papers as is clear from Ex. PW 1/D6. The petitioner / plaintiff by execution of Ex. PW 1/D4 left no claim with defendant as far as dowry or belongings are concerned for future settlement. The defendant also made reliance on these documents but same are of no help to the defendant except to the extent that the obligation of getting mutual divorce decree after signing the agreed divorce 28 papers was not adhered to by the defendant which to my mind is a procedure before the Judge concerned as the plaintiff no.2 has also not agreed for a decree of divorce after acceptance of cheque of Rs. 35,000/-. More so, the plaintiffs cannot be deprived of legal right of maintenance as provided under the Act of 1956 and as discussed above. The submissions that plaintiff no.2 is able to maintain herself and as such, not entitled to the relief of maintenance under the Act, 1956 is also not acceptable on the face of the provisions of the Act under reference. Similarly, the plaintiff no.1 cannot be deprived of maintenance mere because defendant is not allowed to meet the plaintiff no.1 by plaintiff no.2 as sought to be argued whereas defendant himself admitted that he met his son i.e plaintiff no.1 four times.
29
29. Similar is my finding in respect of issue no.2 as reimbursement of medical expenses from the defendant is also part of maintenance of the plaintiffs and the defendant is bound to maintain the plaintiffs in medical terms as well. Both the issues are accordingly decided in favour of the plaintiffs and against the defendant. ISSUE NO.3.
30. It is a case where plaintiff admits that she is drawing Rs. 10,000/- p.m gross income which was no doubt denied by the defendant and the income was stated to be Rs. 35,000/- p.m by the defendant. The defendant while sating that his designation was Assistant Construction & Design Engineer with the NTPC and getting not less than Rs. 15,000/- p.m denied for want of knowledge in the suggestion that his last drawn gross salary was Rs. 30 40,000/- and stated that he can produce his last month salary slip if so directed by the court. The court did direct the parties to file their form 16 certificates of the last five years as well as salary slip for the month of March, 2007. The plaintiff / petitioner filed the documents in compliance of the orders passed. The defendant too filed documents in compliance of the orders which are perused. The pay slip of the defendant shows gross income of Rs. 41,722.84 out of which Rs. 26,486.60 are deductions and the net amount payable to the defendant was Rs. 15,236-00. There is substance in the submissions that the deductions of Rs. 6,000/- towards SBI house building loan, VPF of Rs. 6,109- 00, are not a compulsory deduction and being optional, the net income of the defendant comes to about Rs. 30,000/- p.m which shall also include 31 PF/GPF of Rs. 4,208/- deducted in excess of compulsory GPF deduction under rules. The income of the petitioner/ plaintiff no.2 as per pay slip for the month of March, 2007 shows total income of the plaintiff as Rs. 11,371/-, deductions Rs. 2,250/- which include festival advance, GPF of Rs. 2,000/- which is certainly in excess to the compulsory requirement of deduction of GPF showing the net pay as Rs. 9,121/- which is roughly estimated as Rs. 10,000/- p.m.
31. Considering the observations made during disposal of issues no.1 and 2 as also desertion and abandonment of the plaintiff no.2 as well as plaintiff no.1 when he was in womb without any reasonable cause and consent of petitioner no.2 as well as against her wish after willful neglect and treatment with cruelty so as to cause reasonable 32 apprehension in the mind of plaintiff no.2 that it will be harmful or injurious to live with her husband is writ large on the face of the evidence as brought on record by the parties. The unfounded allegations on the first day of marriage as discussed before, made by the defendant against plaintiff no.2 as well as arranged marriage between the parties and fact that defendant allowed the pregnant wife to leave the house who was to bear the expenses of her delivery and also bear the expenses thereafter because of treatment of the child for congenial health problem who developed Hernia as per certificate of the doctor mark A and B in itself proved the requirement of the Section 18 of the Act, 1956. The locking of the plaintiff and leaving the plaintiff alone in the room in itself is a ground of cruelty. Mere mental satisfaction of the defendant 33 about conceivement of the child as was intimated by the mother of the plaintiff no.2 to the defendant on 12-7-98 in itself is no solution of the problem of maintenance by the defendant who is leading a better life having government accommodation besides a flat of his own and status in the society being senior Engineer in a reputed undertaking of the Government of India called NTPC.
32. In the given facts, the duration of journey from the house of the defendant to the place of defendant by the plaintiff no.2 which was less than to the parental house of the plaintiff in itself could not be a ground for leaving the house by the plaintiff no.2 as sought to be argued by the defendant. The emphasis of the defendant to declaration Ex. PW 1/D8 signed by plaintiff no.2 and the application for consent decree of divorce Ex. PW 1/D7 which 34 decree could not be passed as the plaintiff filed the present suit and did not appear before the Judge concerned for consent decree in itself is no ground for depriving the plaintiffs of the maintenance as prayed for in the present petition. The plaintiff was also not adamant as she made a statement on oath that she will allow her husband to meet the child if he so desires depending on the situation and the situation was explained that he has threatened to harm the child also. Nonetheless the fact remains that defendant did meet the child four times admittedly.
33. This court is not able to subscribe to the submissions of defendant that it was plaintiff no.2 who caused alarm and cruelty to the defendant by writing to his officers for deduction of maintenance from the pay directly. It is admitted case of the 35 defendant that plaintiff / petitioner left the house on 22-10-98 when son was born. No explanations so as to unjustify leaving of the house by the petitioner / plaintiff are placed on record whereas the plaintiff has placed sufficient evidence so as to bring about the requirement of grant of maintenance under Section 18 and 20 of the Act, 1956 especially when the defendant was so adamant who did not pay even a single penny as admittedly Rs. 10,000/- amount was taken back by the defendant which was not accepted by the mother of the plaintiff no.2. The plea of the defendant that plaintiff is earning Rs. 35,000/- p.m is not substantiated on record as nothing to that effect that she was earning beyond the income / salary of plaintiff by performing extra official activities, which is not permissible also under the 36 service rules is placed and proved on record. The defendant is also not fair while deposing on oath that he had no knowledge that his gross salary was Rs. 40,000/- whereas he himself proved the pay slip of March, 2007 showing the salary of more than Rs. 40,000/-. Similarly, the vague statement that he has no knowledge if he has got refrigerator and AC in his flat which only goes to prove that defendant is not fair while deposing on oath in the court. The pleadings of the petitioner / plaintiff no.2 are writ large when it was admitted by the defendant that she contributed Rs. 1,260/- after marriage towards installation of telephone. The liabilities of the defendant towards niece and his brothers and sisters whose details are not given while deposing on oath is not to be taken cognizance while awarding maintenance to the petitioners. There is 37 no denial by the defendant that the fee of the plaintiff no.1 is Rs. 7,500/- for three months.
34. The DW 2 examined in support of the defence is of no avail as not only DW 2 was a mediator who was a friend of the defendant but neither he nor his wife ever cared to reconcile the dispute between the parties. A witness who is not aware about the dispute between the parties as deposed by DW 2 is of no avail to the defendant. This DW was no doubt a witness to the delivery of articles to the plaintiff but has no knowledge if plaintiff no.2 was ousted from the house by the defendant after beating and took delivery of the articles after five or six months of the marriage.
35. The question before the court is as to how much amount of maintenance the plaintiffs are entitled to get from the defendant. Section 23 of the Act 1956 38 provides grounds which are to be given due regard and consideration for determining whether any and if so what maintenance shall be awarded.
36. As already discussed, the position of the defendant is certainly better than the petitioner no.2. The plaintiff / petitioner is residing at the mercy of the parents at her parents house who has reasonable wants of having a house of the status as of the defendant. As already discussed, plaintiff no.2 is justified in living separately from the defendant because of his unfounded allegations and treatment which cannot be short of cruelty so as to impress the plaintiff no.2 to leave the house. The income of the plaintiff no.2 is certainly 1/3rd of the income of the defendant whereas plaintiff no.1 is solely dependent on plaintiff till date which she was able to do as deposed after taking help from the 39 parents. The defendant has also got an independent house besides government accommodation where he is living having no dependent except the plaintiffs as already discussed. There is no other dependent on the defendant. The submissions as to why he should pay all medical and educational charges when they are reimburseable by the employer of the defendant is of no avail to the defendant as such arguments cannot deprive the plaintiff of the claim of the maintenance from the defendant.
37. In the given facts and considering the observations of their Lordship in case of S.S. Bindra vs Tarvinder Kaur reported in 2004 RLR 365 although the authority is on the maintenance under Section 24 of the Hindu Marriage Act, this court is of the view that their 40 Lordship ordered 60% of the net salary to be paid to the wife and two children and not a fixed figure whereas in the cited authority, there was no reference about the income of the petitioner. Further a fixed maintenance was granted in case of Radhika vs Vineet Rungta reported in 2004 RLR 234 which is also relied upon by the petitioner / plaintiff herself.
ISSUE NO.4/RELIEF
38. Considering the net income of the parties, this court is of the view that ends of justice would meet so as to keep the petitioner / plaintiff at the level of status of the defendant, in case the plaintiff no.1 is placed at the same level of standard financially as that of defendant which is possible only in case substantial amount is awarded to the plaintiff no.1 as same is required for his maintenance which I 41 assess as Rs. 7,000/- p.m. Also keeping in view the income of the petitioner / plaintiff and the status which she is required to maintain, that is, at the level of the defendant, she needs more financial maintenance besides the income she is getting from the present employment so as to supplement the status to bring the same to the level of the defendant. The amount of maintenance which the plaintiff no.2 is entitled is assessed as Rs. 5,000/-.
39. The defendant shall be liable to pay Rs. 7,000/- p.m to plaintiff no.1 and Rs. 5,000/- to plaintiff no.2 w.e.f. March 2007 as the income of the parties for the month of March 2007 has been taken into consideration while awarding the maintenance and shall continue to pay the same on 10th day of each month and shall also comply the interim orders passed by Hon'ble High Court of payment of 42 interim maintenance till orders of this court i.e March, 2007. The interim amount payable shall however be subject to the amount already paid by defendant in compliance of Hon'ble High Court orders dated 14.1.03. The defendant shall continue to pay the amount awarded vide order passed of the day on each day of 10th of succeeding month by remitting bank draft directly to petitioner no.2 who shall act for the best interest of the petitioner no.1 while discharging liability of a guardian of petitioner no.1 in the interest of petitioner no.1 till he attains majority.
40. Orders passed accordingly. Decree be drawn and file be consigned to Record Room.
Announced in open Court.
Dated: 12-11-07 (D.C. ANAND) ADDL. DISTRICT JUDGE:
DELHI.43
IN THE COURT OF SHRI D.C. ANAND:
ADDL. DISTRICT JUDGE: DELHI.
Suit No.154/05 Master Anirudh & Anr.
Versus Jiban Kumar Nag ORDER
1. Vide order of the Hon'ble High Court dated 19.7.2007, of which copy was placed on record by the respondent, directions were issued to the mother of the child, who is petitioner no.2 in the petition under Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956, to bring the child namely Master Anirudh, who is petitioner no.1 in the said petition, for 1.9.2007.
2. On that day at 12.00 noon the child was left in the chamber of the undersigned by the petitioner 44 no.2 in compliance of the order and thereafter the respondent, who is father of the child, was called so as to make compliance of the order of the Hon'ble High Court dated 19.7.2007. Close watch was kept when the father of the child entered in the chamber, on the child so as to notice his behaviour.
The child was very indifferent towards his father. Only on being told by the father that he was his father, the child looked at the father. When the father tried to pass on gift items i.e toy laptop and soft drink (frooti), the child refused to accept the same. On being asked as to why he was not accepting the gifts from his own father, the child replied that he did not know his father and until his mother permit, he would not accept anything from his father. It was so replied by the child on being told that her mother is fighting a battle for 45 maintenance for him and in case court orders, maintenance could be provided to him. At a later stage i.e after the meeting between the father and child, the mother was also called so that child could seek permission for handing over gifts to him. The mother of the child politely asked the child to accept the gifts if he wish. The child, however, said that he would not accept any gift from him. Before that the child very intelligently told the court that he would not accept anything from his father because his father is harassing the whole of the family which include his mother, his mother's parents and himself as year before even threat was extended that he would take away (Utha Lenge) the child from the custody of the mother.
3. During the meeting the behaviour of the child was indifferent towards the father. It was noticed 46 that he was not at all looking towards his father. The child was quite mature and understanding and replying to the query of the court as well as submissions of his father to him about the gifts and other family matters. On court query to the child whether he would like to live with his parents if they start living together in future in a house, the reply of the child was that he would ask the father to live with them at the house of his maternal grand father and grand mother where also his mother is residing. He also said that he would never live with his father as would prefer to live with his mother only. The child, although intelligent and mature who was student of third standard in a convent school (D.P school) as was told, was not friendly to his father as he was repeatedly telling him that he is a lier and has 47 harassed and abused his mother a lot and had created a scene when he (father) was allowed to meet him at his mother's house a year before. The child has developed dislike because of unfortunate parting of living by his parents for a long period which was stated to be since filing of the petition which was filed in 2000. The child, no doubt, replied to the talks held by his father but in a very indifferent and unfriendly manner. On the face of his father the child was telling him that he only laughs and do nothing besides being a lier and would never like to live with him even if his mother starts living with him in future and in that case he shall prefer to live with his grand maternal parents and would also ask his mother to live along with them. It was a meeting between father and child for about 40 minutes. From the behaviour and 48 talks and the interaction between the two it can be easily inferred and said that child has not gained sufficient confidence to be with his father. The reasons for the same be many fold. The basic reason, as understood by this court from the talks and the proceedings, could be that for the last seven years the child could remain in the company of the father for a short period when the father met child on his Birthday which was also not a praiseworthy meeting between the two as was revealed by the child before this court.
4. So far as visitation right of the respondent is concerned, this court is of the view that keeping in view the behaviour of the child towards his father, in the meeting which took place in the chamber, it would be not desirable to grant independent visiting right to visit the child. However, it would 49 be appropriate orders for the welfare of the child as well as considering the right and liabilities of the father of the child that the father should be allowed to see the child in the presence of his mother in the school premises under the supervision of the Principal of the school in his chamber/room for a period of half an hour on last Saturday of the each month during the preliminary hours of the school time on that day. In case of misconduct prejudicial of the welfare of the child during such meeting on the part of the father or mother of the child or continuous default twice or thrice by the father of the child to present on such meeting without a prior approval from the Principal, the Principal may discontinue to arrange such meetings without any further orders from the court. This order is passed considering that child is only 8 plus as of 50 now and not mature enough to understand his welfare and may be, as natural, under influence of mother who never lived with his father so as to understand the nature of the father as well by the time of schooling, his childhood be matured enough to understand his welfare and fair decision as to where he wish to live and with whom.
Announced in open Court.
Dated: 12.11.07 (D.C. ANAND) ADDL. DISTRICT JUDGE:
DELHI.