Delhi District Court
Smt. Vandana Sharma vs Sh. Vinod Kumar Rai on 25 June, 2010
-1-
IN THE COURT OF Ms. GEETANJLI GOEL, MM, NEW DELHI
CC No. 172/1
Date of Institution: 23.12.2008
Date reserved for Judgment: 4.6.2010
Date of Judgment: 25.6.2010
U/s 125 Cr.P.C.
PS Tilak Marg
In the matter of :
1. Smt. Vandana Sharma
W/o Sh. Vinod Kumar Rai,
D/o Sh. S.R. Sharma,
144 & 278-B, New Delhi Courts,
Patiala House Courts, New Delhi
Petitioner No. 1
2. Baby Purva (Minor),
D/o Sh. Vinod Kumar Rai
(Through her mother & natural guardian Smt. Vandana Sharma)
Petitioner No. 2
Both R/o E-387, Gali No. 7,
West Vinod Nagar, Delhi.
Versus
Sh. Vinod Kumar Rai
S/o Late Sh. Raghvansh Rai,
Seat No. 2, SDM Gallery,
New Delhi Courts, Patiala House Courts,
New Delhi
Also at:-
R/o A-15, Sector-50, Rail Nagar,
NOIDA, Distt. Gautambudh Nagar, U.P.
Respondent
Judgment:
1. The present is a petition u/s 125 Cr.P.C. filed by the petitioner on her and on behalf of the petitioners No. 2 being minor against the C.C. No. 172/1 -2- respondent claiming maintenance.
2. It is the case of the petitioners that the petitioner No. 1 had married the respondent on 11.8.2007 as per Hindu rites and ceremonies.
The petitioner No. 2 was born out of the said wedlock on 16.9.2008. It is averred that after the in-laws of the petitioner No. 1 left for their village on 13.8.2007, the respondent started coming home late and heavily drunk and if the petitioner No. 1 asked the reason of his coming late, he used to say that he had gone to NOIDA to meet his Bhabhi Dr. Sushma with whom he was residing prior to the marriage for last about 10 years. It is averred that he started misbehaving, abusing and assaulting the petitioner No. 1 for demand of dowry. The bhabhi of the respondent said to him in the presence of the petitioner No. 1 on 18.2.2007 as to what was the need for him to get married and she should be thrown out from there. She also said to the petitioner No. 1 if she could get a house for them or arrange Rs. 15,00,000/- to build a house and if she could not do that then she was not required to live there and she should collect her goods and get out as early as possible and also threatened the petitioner No. 1 that she did not know how influential she was and the petitioner No. 1 had to face dire consequences if she would not arrange Rs. 15 lacs. It is averred that the father-in-law of the petitioner No. 1 expired on 11.9.2007. At this, the respondent abused and assaulted her. He left for his home town on 12.9.2007 alongwith his bhabhi and refused to take the petitioner No. 1 with him. After returning from the village, respondent's bhabhi threatened the petitioner No. 1 on 14.9.2007. It is averred that the petitioner No. 1 left for her in-laws' house at village Madhopur Dharang, C.C. No. 172/1 -3- Teshil Lalganj, Distt.-Ajamgarh, U.P. on 16.9.2007 to attend the funeral ceremonies and reached there on 17.9.2007. The respondent left for Delhi on 1.10.2007 and did not take the petitioner No. 1 with him saying that his Bhabhi would get annoyed if she came to know that he had returned with the complainant as she did not want them to be together and she would withdraw all the facilities which she was providing him. The respondent asked the her to return after 1 week.
3. It is averred that after the death of father-in-law, the respondent and his bhabhi became unbridled and started harassing the complainant for demand of dowry. The jethani of the petitioner No. 1 started coming to the house of the petitioner No. 1 frequently and provoked the respondent against her. Both of them assaulted the petitioner No. 1 several times for demand of dowry and also to compel her to leave the house and the respondent. It is averred that whenever the jaithani of the petitioner No. 1 came to her house i.e. on 18.8.2007, 22.8.2007, 29.8.2007, 8.9.2007, 7.10.2007, 15.10.2007, 13.11.2007, the respondent and his bhabhi used to close themselves in a room and bolted the door from inside. Whenever, the petitioner No. 1 objected, they told her not to raise any question. On 7.10.2007, when the petitioner No. 1 returned from in-laws house, she knocked at the door, then her husband opened the door. She saw her husband was in bare essentials and when entered her bedroom, she found her jaithani on her bed in objectionable situation and her bed was also in scattered position. When she objected to it, both of them assaulted her and threatened her not to disclose it to anybody. After her jaithani left, the respondent said to the C.C. No. 172/1 -4- complainant that he had to do everything in order to please his Bhabhi so that she may provide all those facilities which she was providing to him and stated that he was having illicit relationship for the last about 10 years and that was the reason, he did not get married till the age of 45 years because he did not feel any need to get married and he had married her as he had no access to his Bhabhi for last 1 and half years due to objection raised by her sons. He stated that the house belonged to the Bhabhi and now she had again started entertaining him, so she was no more required there. It is averred that both the respondent and his bhabhi brutally assaulted the petitioner No. 1 for her objection to illicit relationship on 7.10.2007 and 13.11.2007.
4. It is averred that on 7.10.2007, when the petitioner No. 1 was arranging her almirah and suitcase, she found all her jewellery missing and when she asked her husband about it, he said that the same was in safe custody and that his Bhabhi had come in her absence and he had given all her jewellery to her to detain it till the petitioner No. 1 gave him Rs. 15,00,000/-. It is averred that the respondent started being frequently absent at nights and did not return home on 28.10.2007, 30.10.2007 and 2.11.2007. The respondent assaulted the complainant on 15.10.2007 on the provocation given by his bhabhi and he also threatened the petitioner No. 1 and he tried to strangulate the complainant on 3.11.2007 on the provocation given by his Bhabhi. It is averred that jaithani of the petitioner No. 1 used to talk to the respondent at late/odd hours, sometimes till 1.30 AM. On 25.11.2007, the petitioner No. 1 and the respondent shifted from Rohini to West Vinod Nagar. Then the C.C. No. 172/1 -5- respondent frequently started staying at Noida. On the objection of the petitioner No. 1, he stated the he would do whatever he likes. He did not return home at night on 25th, 28th to 30th November, 3rd, 5th, and 14th December, 2007. The respondent kicked in the stomach of the petitioner No. 1 on 20.12.2007. On 10.1.2008, the jaithani of the petitioner No. 1 again provoked the respondent against the petitioner No. 1 on phone, as a result the respondent abused her and assaulted her at the instance of his Bhabhi for demand of dowry. The respondent brutally assaulted the petitioner No. 1 on 8th and 25th Feb., 2008 on the provocation given by his Bhabhi and did not return home at night on 19th, 25th, 26th and 28th January and on several dates in February and March of 2008.
5. It is averred that when the respondent came to know that the complainant was pregnant, he pressurized her for miscarriage. When she did not agree, he left the house in April, 2008 and started living with his Bhabhi at Noida. He did not want to take any liability of the baby and since then he was living there. It is averred that on 7.7.2008, the jaithani of the petitioner No. 1 came to Patiala House. The respondent called the petitioner No. 1 in the parking at gate No. 4 of Patiala House saying that he had to say something personal to her. Then, both of them pressurized the petitioner No. 1 to give them money and when she showed her inability to arrange that much amount, both of them asked her to divorce the respondent husband and leave Delhi forever. They threatened the petitioner No. 1 not to make any complaint against respondent for their torturing and harassing the petitioner No. 1 for demand of dowry otherwise she would be killed. She was again threatened by the C.C. No. 172/1 -6- respondent and his bhabhi on 8.7.2008 and 15.7.2008 and on 29.7.2008, the jaithani of the petitioner No. 1 again threatened her. In the night of 29.7.2008, respondent came to her and asked her to divorce him and on her refusal, he threatened to kill her alongwith her family members. It is averred that on 14.9.2008, the respondent again said to the petitioner No. 1 how she would prove the adultery. It is averred that the petitioner No. 1 had lived alone during the whole term of pregnancy and when she asked the respondent to call some relatives at the time of delivery, he clearly refused as a result of which, the mother of the petitioner No. 1 who was bed ridden had to stay with her at the time of delivery. She was unable to do anything except lying on bed, as a result of which the petitioner No. 1 had to work soon after the delivery, due to which her health was spoiled and she had yet not recovered from the ill-health.
6. It is averred that the child was born on 16.9.2008. The petitioner No. 1 informed all her in-laws about the birth of the child and invited them for Mool Shanti/Naamkaran on 14.10.2008 but none of her in-laws came to attend the ceremonies. Her jaithani talked to her on phone on 6.10.2008 and stated to her that she would not allow to meet the child and threatened the petitioner No. 1 to leave Delhi along with the baby otherwise she would be killed as her demands were not fulfilled. The jaithani of the petitioner No. 1 did not allow the respondent to come for Mool Shanti and Naamkaran on 14.10.2008, as a result Mool Shanti could not be done due to the absence of the father. The respondent met the complainant on 17.10.2008 and stated that he did not come on Naamkaran of the child because his Bhabhi did not want him to attend C.C. No. 172/1 -7- the ceremonies and stated about getting DNA test done. It is averred that the petitioner No. 1 had been working hard during the whole term of pregnancy in order to maintain herself and now she was unable to work and earn her livelihood. When she asked the respondent to maintain her and the child, he did not pay any attention. Being constrained, the petitioner No. 1 sought the interference of the New Delhi Bar Association. A meeting was held on 20.11.2008, but no fruitful result came out. When the respondent came to know about the case u/s 12 of the Protection of Women from Domestic Violence Act, he again threatened the petitioner No. 1 on 1.12.2008 and 10.12.2008 of dire consequences. It is averred that the respondent has sufficient means but knowingly avoiding/neglecting to maintain the petitioners. It is averred that the petitioner No. 1 is a lawyer but she is not practice since September, 2008 due to birth of the child who is a minor and they have no source of income to maintain themselves and they are dependent upon the mercy of their friends and well wishers. It is averred that the respondent is a practicing lawyer and earning a sum of Rs. 25,000/- per month. The petitioners have prayed for a sum of Rs. 15,000/- per month for maintaining themselves.
7. Reply was filed by the respondent denying the averments made in the petition and taking preliminary objections stating that the negotiation and solemnization of the marriage between the respondent, practicing advocate since 1999 in Patiala House Courts and Vandana Sharma/petitioner No. 1 also an advocate started in July, 2007 through the mediating role of two common advocate friends namely Jitesh Vikram Srivastava and Sh. Harish Sharma. On 27.7.2007, the respondent C.C. No. 172/1 -8- and the petitioner No. 1 met at India Gate and decided to get married. The respondent wanted to delay the marriage on financial ground but the petitioner No. 1 wanted it as early as possible. Sh. Jitesh provided the venue on 09.8.2007 for marriage at Greater Noida and advocate friends namely Sanjay Visen and Harish Sharma cleaned the house for marriage ceremony to be held on 11.8.2007 as it was lying locked for months. It is averred that the expenses of the marriage ceremony i.e catering, tents, water etc. were incurred exclusively by the respondent. As such, the marriage was free from any family intervention from either of the sides. It is averred that the petitioner No. 1 is an Advocate and capable of maintaining herself and she is already getting Rs. 4,000/- per month as directed by this court in case u/s 12 of Domestic Violence Act. It is averred that the petition is devoid of any merit as the petitioner No. 1 has been earning Rs. 10,000/- by drafting and typing work but sitting at her residence and she is regularly appearing appearing in several matters before courts and CAW Cell.
8. On merits, it is denied that the respondent started coming home later and heavily drunk. Allegations of misbehaving, abusing and assaulting are denied. It is denied that the bhabhi of the respondent demanded Rs. 15 lacs from the petitioner No. 1 or she threatened her on 14.9.2007. It is denied that the respondent refused to take the petitioner No. 1 with him saying that his bhabhi would get annoyed and it is averred that the respondent had requested the petitioner No. 1 to stay with his grieving mother for few weeks but the she came back to Delhi disobeying his request on pretext of her career and society. It is denied that the C.C. No. 172/1 -9- respondent and his bhabhi became unbridled and started harassing the respondent No. 1 for demand of dowry or the jaithani of the petitioner No. 1 started coming to the house of the petitioner No. 1 or provoked the respondent against her. It is denied that the jethani of the petitioner No. 1 came to her house on 18.8.2007, 22.8.2007, 29.8.2007, 8.9.2001, 7.10.2007, 5.10.2007 and 13.11.2007. Incident of 7.10.2007 is denied. It is further denied that the respondent stated to the petitioner No. 1 that he was having illicit relationship with his bhabhi for the last about 10 years and that is why he did not get married till the age of 45 years. It is denied that the respondent and his bhabhi brutally assaulted the petitioner No. 1 on her objection on their illicit relationship on 7.10.2007 and 13.11.2007. It is averred that the bhabhi of the respondent is like her mother who has been taking care of him for last 10 years like her son and the petitioner No. 1 by making such a wild allegation has not only abused the sanctity of relations but also has exposed her depravity of mind.
9. It is denied that on 7.10.2007, the petitioner No. 1 found all her jewellery kept in her suitcase missing or that he had given all her jewellery to his bhabhi to detain it. It is averred that the petitioner No. 1 is having all her jewellery article with her and the same were never in the knowledge and control of the respondent and even the household articles such as double bed, fridge, table, radio etc. of the respondent are still in the possession of the petitioner No. 1. It is denied that he did not return home on 28.10.2007, 30.10.2007 and 2.11.2007 or he assaulted the petitioner No. 1 on 15.10.2007 and 13.11.2007 on the provocation given by his bhabhi or he tried to stangulate her on 3.11.2007. It is averred that the petitioner C.C. No. 172/1 -10- No. 1 is already a divorcee and because of her abusive, arrogant, unaccommodative and violent behaviour, the respondent was forced to leave her company. It is denied that the jethani of the petitioner No. 1 used to talk to the respondent at late/odd hours. It is averred that the respondent even not being in her company used to give her money from time to time so that the relation may take a positive turn but when he saw that the relation is not workable then he stopped and after the delivery he again made payments for the child.
10. It is denied that the respondent pressurised her for miscarriage and when she did not agree he left her in April, 2008. It is stated that the petitioner No. 1 had herself aborted just after the marriage without even knowledge of the respondent. Incident of 7.7.2008 is also denied. It is submitted that the petitioner No. 1 is making false allegations and misleading the court as on one hand she is accusing the respondent for demanding Rs. 15 lacs from her and on the other hand she is saying that the respondent is asking for divorce just after completion of one year of marriage. It is denied that the petitioner No. 1 had to live alone during the whole term of pregnancy. It is averred that the petitioner No. 1 had been appearing in her matters till 8.9.2008 just before one week of the delivery and here she had submitted that she was on bed rest prior to delivery. It is denied that the petitioner No. 1 informed all her in-laws about the birth or baby or the jethani of the petitioner No. 1 did not allow the respondent to come for Mool Shanti and Naamkaran of child. It is averred that the respondent went to the hospital to see the child and welfare but there he was assaulted staff as the petitioner No. 1 had asked C.C. No. 172/1 -11- them not to allow the respondent inside the hospital and he returned from the hospital after extreme mental and emotional tension and torture. It is denied that the respondent did not pay any attention on the request to maintain the baby. It is averred that the respondent honestly stated in the NDBA meeting that he was already paying as per his capacity and income and he would be paying in future only to the child as per his capacity and income without any commitment of Rs. 5,000/- as demanded by the petitioner No. 1. It is denied that the respondent threatened the petitioner No. 1 of dire consequences on 10.12.2008 in case she proceeded with the domestic violence case. It is denied that the respondent is knowingly avoiding/neglecting to maintain the petitioners. It is averred that the respondent was ready to pay Rs. 1,500/- to 2,000/- per month to the baby and he is still committed to it. It is denied that the respondent is duty bound to maintain the petitioner No. 1 as she is qualified, competent and capable enough to maintain herself which she has been doing for the last 10 years. It is averred that the petitioner No. 1 is practicing for the last 10 years in Patiala House Courts itself. It is denied that the respondent is earning Rs. 25,000/- per month and is capable of maintaining the petitioners. It is averred that the respondent hardly earns Rs. 5,000/- to Rs. 7,000/- per month from his profession as the petitioner No. 1 has not only spoiled his personal life but also professional life.
11. Replication was filed on behalf of the petitioner No. 1 denying the preliminary objection and reiterating and reaffirming the averments made in the petition as well as in the paragraph in support of the C.C. No. 172/1 -12- application. It is averred that the respondent had sent an offer of marriage to the petitioner No. 1 through Sh. Jitesh Vikram Srivastava, Advocate who held the meeting in his chamber on 27.7.2007 for the purpose of negotiations of marriage between the petitioner No. 1 and the respondent. It is denied that the petitioner No. 1 and the respondent had a meeting at India Gate and decided to get married. It is averred that the expenses of the marriage were borne by both parties in equal proportion. It was a purely Hindu marriage and was attended by the parents, relatives and friends of both the sides.
12. It is averred that petitioner No. 1 is out of practice as she is staying at home taking care of the baby who is small and requires intensive and full time care of the mother and the petitioner No. 1 as a wife has a right to be maintained by her husband when she is unable to maintain herself. It is admitted that the respondent was directed to pay interim maintenance of Rs. 4,000/- per month to the petitioner No. 1 in the domestic violence case and it is averred that the respondent had filed and appeal against the said order. It is averred that the petitioner No. 1 is appearing before the CAW Cell and this court in her own personal matters along with the baby as she is staying alone and there is no one to at home to take care of the baby. It is averred that when the petitioner No. 1 was about to leave for her in-laws house, a close relative of her Sh. Rajan Sharma called the respondent on phone in order to inform him about the departure of the petitioner No. 1 for his village, on which the respondent misbehaved with him and threatened to break the marriage in case the petitioner No. 1 reaches his village to participate in the last C.C. No. 172/1 -13- rites of his father. Then, Rajan Sharma spoke to the mother-in-law of the petitioner No. 1 and the mother-in-law accused the petitioner No. 1 for the death of the father of respondent and asked him not to call her ever in life and not to interfere in the matters between the parties. It is denied that the respondent asked the petitioner No. 1 to stay with his mother for few weeks rather he had asked the petitioner No. 1 to come to Delhi after one week. It is averred that the respondent had left his wife and the baby for the sake his relations with his bhabhi which itself makes his conduct doubtful because he had no reasonable cause to do so and the bhabhi of the respondent was living alone with the respondent as she was having strained relationship with her husband due to her relationship with the respondent and was residing separate from her husband.
13. It is averred that all the items mentioned by the respondent allegedly lying with the petitioner No. 1 are not in her knowledge except the big and and easily visible items like fridge etc. which the respondent had voluntarily as he had left the house where the petitioner No. 1 was living. It is averred that the respondent who was inclined to marry the petitioner No. 1 knowing well that she was a divorcee had sent an offer of marriage and he left the company of the petitioner No. 1 as protest when she refused for miscarriage as suggested by him. It is averred that when the respondent refused to help the petitioner No. 1 financially, she had to seek the interference of NDBA and was constrained to file a case u/s 12 of Domestic Violence Act. It is averred that the petitioner No. 1 was not pregnant at the time of the marriage and it was the respondent pressurised her for miscarriage when he came to know about her C.C. No. 172/1 -14- pregnancy and left the house in protest in April, 2008. Even he had admitted before the Excecutive Committee on 20.11.2008 that the baby was born against his wishes. It is averred that the respondent had asked for divorce when the petitioner No. 1 showed her inability to fulfill his demands. It is averred that respondent No. 1 was called by the mother of the petitioner No. 1 for admitting her in hospital at the time of delivery but when he did not reach there, the brother of the petitioner No. 1 admitted her to the hospital for the delivery of the child. The respondent came to the hospital at late hours at night in a drunken position. After the birth of the baby, the petitioner No. 1 was told by the hospital staff that the respondent raised a quarrel in the hospital with the guards posted in the hospital, as a result of which the police was called by the Medical Superintendent. The respondent left the hospital as soon as he heard about the birth of a female child and he even did not come on the Namkaran ceremonies of the baby on 14.10.2008. It is averred that advocates pressurized the respondent, only then he came to see the child in the intervening night of 17th-18th October, 2008. It is averred that the respondent cannot avoid his liability to maintain the petitioners on the pretext that the petitioner No. 1 is qualified enough. It is averred that the petitioner No. 1 never interfered in the professional life of the respondent and he is having regular income from his profession.
14. Vide order dated 22.4.2009, interim maintenance of Rs. 3,500/- per month to the petitioner No. 1 and Rs. 1,500/- per month to the petitioner No. 2 was awarded.
C.C. No. 172/1 -15-
15. The petitioner has led her evidence by way of affidavit which is Ex. PW1/A filed by the petitioner No. 1 reiterating the averments made in the petition. She has placed on record copies of receipt in respect of jewellery articles, complaints made her to police, rent receipts and medical prescriptions and receipts showing expenses of the child. The petitioner has also filed the affidavit of another witness Smt. Rita Sharma but thereafter it was stated that Smt. Rita Sharma was unable to appear in court and her evidence was closed. An application was also filed on behalf of the respondent to recalled the petitioner for cross-examination but the same was dismissed vide order dated 28.8.2009.
16. The respondent has led his evidence by way of affidavit which is Ex. RW1/A reiterating the averments made in the reply. The respondent has also led the evidence by way of affidavit of Dr. Sushma Sinha which is Ex. RW2/A. She has deposed that she is working as a Senior Gynecologist in Indraprastha Apollo Hospital since 1994. She has two sons. Her husband is an Orthopedic Surgeon and a Professor in a medical college, Banaras Hindu University. She stated that the respondent is her brother-in- law (cousin of her husband). She and her husband had purchased two flats for the purpose of study of the respondent and another brother in 1990. After the failure of the respondent in judicial service examination, he came to Delhi to practice as an advocate in 1997. She and her husband provided him necessary back-up for profession and residence and even at present they occasionally support him. She stated that the flat in the name of the respondent was sold in 2008 for Rs. 1,20,000/- but she Shailendra Kumar Upadhyay regarding which payment was made in C.C. No. 172/1 -16- the name of the respondent by way of demand draft and deposited in his account. The said amount was paid to the contractor Vishwanath Chaudhary who was constructing her house by cheque and as such the money invested by her husband was refunded by the respondent. She stated that in the month February, 2008, she entered into an agreement with one Ms. Meenakshi Anand onwer of plot bearing No. A-285, Sector- 46, Noida and requested the respondent to help her in finalizing the deal as she remains busy with her work at hospital and do not have any understanding of legal technicality. For the purpose of finalising the deal of the said plot she issued three cheques from joint account in favour of the respondent who used the said amount for making the payment of the said plot and the same was utilized by her for her plot purposes. She stated that earlier also the respondent had been transacting in the said manner. Pages containing details of cheque book are Ex. RW2/A.
17. The respondent had also led evidence by way affidavit of Sh. Sanjay Kumar Visen but thereafter the said witness was not produced in the witness box.
18. An application u/s 125 (4) Cr.P.C. was also filed by the respondent for recalling the order of interim maintenance stating that the respondent had moved an application for granting granting anticipatory bail in FIR No. 270/09 u/s 498-A/106/34 IPC PS Mandawali wherein the court had directed the petitioner and the respondent to reach an amicable settlement through mediation cell. In the mediation proceedings the petitioner flatly refused the offer of the respondent C.C. No. 172/1 -17- towards resolving disputes and restoring matrimonial relations. He tried to persuade the petitioner through common friends whom she refused to have any matrimonial tie with the respondent despite their best efforts. She also refused to assign any reason as to why she was not ready and willing to join the company of the respondent whereas the respondent is ready and willing to discharge his matrimonial duties and liabilities towards the petitioner and the child. Reference is made to Section 125 (4) Cr.P.C.
19. I have heard the Ld. Counsel for the petitioners and the respondent and perused the record. The Ld. Counsel for the petitioners has argued that the incidents are stated in the petition. The petitioner has a small child and she is unable to do work as she has to look after the child. The expenses of the petitioner are stated. It is argued that the respondent has bike, mobile phone and other sources of income which he has tried to conceal but he is avoiding to pay maintenance to the petitioners.
20. Written arguments were filed on behalf of the respondent. It is argued that the allegations levelled by the petitioner No. 1 are lies and miscreations of the mind the petitioner No. 1 causing disastrous consequences in the personal, social and professional life of the respondent and all the incidents of cruelty have not been proved specifically. The petitioner No. 1 in her cross-examination has nowhere made any specific, concrete and incontrovertible statement either regarding cruelties against her or intentional neglect in her upkeep and C.C. No. 172/1 -18- maintenance by the respondent. It is argued that an individualistic and self-centered life for a long period develops uneven habit and behaviour and in this lies the root of matrimonial discord of the parties. It is argued that the petitioner had admitted that she used to provide pocket expenses to the respondent which establishes that both the parties shared the household and other expenses from their joint incomes and the share of the petitioner No. 1 was little more. She had admitted that prior to marriage she had been maintaining herself independently and had her own rented accommodation and fulfilled all her needs from her own pocket. The respondent maintained himself at Rohini but sometimes he had to borrow money from his bhabhi and prior to shifting to West Vinod Nagar, he lived in the vacant flat of his bhabhi for about 3 years and as such even prior to the marriage he was not better financially placed than the petitioner. The petitioner before filing the petition u/s 12 of D.V. Act was maintaining herself but the respondent even after 4.4.2008 used to make some payments to the petitioner though the same are not part of records and have not been proved as the respondent did not have evidence of the same. It is argued that the petitioner has received regular maintenance as per the interim order. She has stated that she was not able to maintain herself because of delivery of the petitioner No. 2 and she would not be able to do so for the next 2 years as there was no one to take care of the child and as such her prayer was the conditional one which condition does no apply in the circumstances. The petitioner No. 1 had applied for Legal Aid services which shows that she is in position to devote herself for professional commitments which would be coupled with her financial soundness and competence. It is C.C. No. 172/1 -19- argued that failure of the petitioner No. 1 to prove the cruelties established that the she herself threw the respondent from the common rented premises and it was her own decision to live alone. That is why she did not move any application till 17.11.2008 and the respondent never neglected to maintain the petitioners. It is argued that the petitioner No. 1 is not only well qualified professional but also has a long standing of over 10 years and has maintained herself without any support and the condition to get maintenance from the respondent is not satisfied as she has resumed her practice. The petitioner No. 2 is a joint liability of both the parties though the petitioner has not allowed the respondent to meet her from the date of her birth. It is argued that the respondent was always ready to share the expenses bringing up the petitioner No. 2 and shall pay maintenance to her.
21. Additional arguments were filed making the reference u/s 125 (4) Cr.P.C. It is argued that during the proceedings of anticipatory bail filed by the respondent the petitioner No. 1 had straight away refused to live with the respondent and demanded Rs. 10 lacs for final settlement and said nothing to join the company of the respondent. It is argued that the petitioner is a well established advocate and she deserted the respondent on her own. The reliance is placed upon various judgments. It is argued that law relating to maintenance has changed and developed and a qualified wife is not entitled to maintenance and it is argued that if both the parties are working they shall jointly share the maintenance of the child. It is argued that it is an admitted fact that during matrimonial tie-up and stay with the respondent, the petitioner C.C. No. 172/1 -20- was maintaining all expenses in the house and even personal expenses of the respondent and the respondent is not capable to maintain her in any manner.
22. In the instant case, the marriage between the parties is not disputed and the petitioner had testified that she was married with the respondent on 11.8.2007 according to Hindu rites and ceremonies. The paternity of the petitioner No. 2 is also not disputed.
23. The next point of consideration is whether the respondent had refused and neglected to maintain the petitioners. It is the case of the petitioners that the respondent had subjected the petitioner No. 1 to cruelty and have refused to maintain her. On the other hand, it is the case of the respondent that it was the petitioner No. 1 who had straight away refused to live with the respondent and she was not entitled to any maintenance.
24. During cross-examination PW1 stated that this is her second marriage. Divorce with her earlier husband took place in 1992. She had not filed any petition for maintenance against her earlier husband. She had filed her present petition at the address of court as well as her residential address which was her working place. She admitted that no residential address was given in her petition as well as memo of parties. That day, she was maintaining her court address as well as her residential address for corresponding purposes. Residential address was later on C.C. No. 172/1 -21- mentioned in her affidavit but the affidavit filed with the petition bears her residential address and the correspondence was done on her residential address. She admitted that she had mentioned in her petition under Domestic Violence Act that all the expenses were incurred by her because her husband was not supporting her financially and she had filed affidavit to that effect also. At that time, she was capable to maintain all the expenses and needs. Her husband was also demanding money from her. She did not know for what purpose he was taking money from her. She used to give money on demand. She denied the suggestion that she did not ask the reason why he was asking for reason as she knew that he was taking money for his expenses. After marriage, they were started residing at Rohini near Madhuban Chowk but today she did not remember the full address. They stayed there since August, 2007 to November, 2007. It was the house of bhabhi of her husband. Thereafter, they started residing at rented accommodation at E-387, Gali No. 7, West Vinod Nagar, Delhi-92. She denied the suggestion that the residential accommodation at Rohini was a rental accommodation and she used to pay the rent thereof. They resided together at her present address at Vinod Nagar since 25th November, 2007 to 3rd April, 2008. Thereafter, her husband left the place and since then she was residing alone at the present address alongwith the baby. She admitted that she had not lodged any complaint against her husband with the police prior to filing of this case. No miscarriage had taken place prior to birth of her baby. She denied the suggestion that she had told her husband in September, 2007 that she had conceived or that she had made complaint to her in-laws against her husband that he was forcing her to C.C. No. 172/1 -22- abort the child. Her baby was delivered in a Govt. hospital i.e. Lal Bahadur Shastri, Khichripur. After delivery, she left the hospital against medical advice because she was not provided any bed there and contacted her private doctor under whom she had undergone treatment during the pregnancy. She was discharged after the treatment. She had not filed any receipt. She admitted that the doctor advised her for special diet/tonics after delivery which was continued till that day. She has placed on record the recent prescriptions etc. These all expenses were provided by her brother. Her brother was a computer operator. He was doing private job in a lawyer's firm in the name of some Aggarwal. After the delivery, she had taken bed rest for about 2 months. None attended her during that period except for first 15 days after the delivery. Her mother who was herself bed-ridden stayed with her for 15 days after the delivery. After that she stayed alone and she performed all the household duties as well as took care of her baby alone. After about one month of the baby her husband visited her. She volunteered that her husband visited her only when he was pressurised / persuaded by hers colleagues to visit her and the newly born baby. She was in contact with her colleagues on telephone. Her husband left her in April, 2008 when she disclosed to him about her pregnancy. She denied the suggestion that her husband left her voluntarily of that she was quarreling, insulting and giving mental torture as he used to take money for his expenses from her as he was not capable of bearing his expenses. She further denied the suggestion that the story narrated in her petition was only to insult and humiliate the respondent or that the lady mentioned by her in the petition as bhabhi of her husband was not the bhabhi of her C.C. No. 172/1 -23- husband. She was wife of cousin of te respondent who was not bhabhi. She denied the suggestion that she had filed the present petition in order to harass the respondent.
25. During cross-examination RW1 admitted that date of marriage was fixed according to convenience of both of them. There were expenses of about Rs. 50,000/- in the marriage. The said amount was paid to several persons like for catering, to tent person. He paid the said amount in cash. Along with the petitioner her brother, brother's wife, their children came in car. Her father came but not in the car. From her side her mother, father, brother, nephew, bhabhi participated. There was a lot of difficulty even in incurring marriage expenses. He volunteered that he had to borrow . He denied the suggestion that he demanded marriage expenses from the petitioner or compelled her for the same or her father who came for marriage gave him Rs. 25,000/-. He admitted that he never financially supported the petitioner or maintained her till she remained with him. He volunteered that he was not in a position to do so and the petitioner was supporting him. He admitted that he had not mentioned in written statement that the petitioner used to financially support him. He volunteered that same might have been left out. He admitted that her bhabhi was the respondent No. 2 in the D.V. Act case against him. He was residing in NOIDA House since August, 2008. He denied the suggestion that on account of Dr. Sushma there was a lot of dispute between him and the petitioner or when the petitioner objected when she saw him in an objectionable position with her he left the petitioner. Flat at Rohini also belonged to his bhabhi Dr. Sushma. He did C.C. No. 172/1 -24- not remember if he mentioned in his written statement that he came to know after marriage that the petitioner was a divorcee. He had brought document Mark X to show the petitioner is suffering from epilepsy. He admitted that it was not mentioned therein that the petitioner was suffering from epilepsy. Ld. Counsel for the petitioner has objected to the said document on ground of reliability. He did not take any step against the petitioner after coming to know that she was a divorcee and had epilepsy and continued to remain in matrimonial relation with her. He volunteered that he tried to explain to her. The petitioner was also in practice since 1999. He did not know her personally since then but he knew her by face. He and the petitioner had common friends earlier but now they do not have. The common friends were in practice before him and some after. Sh. Jitesh was in practice since before him and Sh. Sanjay Visen and Sh. Harish Sharma came in practice later in 2001-2003. Through common friends they first met since days of stating practice. He denied the suggestion that he had deposed falsely about epilepsy or that he came to know about her being divorced after marriage or that he knew same since prior to marriage and also that she was a healthy person. He got Mark X from MIG 391, Pocket C, Sector 8, Rohini. He was not searching her belongings then. He denied the suggestion that in absence of the petitioner he used to search her papers and personal belongings or he had taken away her jewellery and valuables. They left the flat at Rohini because bhabhi had to sell the same. From Rohini they shifted Vinod Nagar. He volunteered that he remained at Rohini and the petitioner searched for new accommodation and when she found it he joined her on 29-30 November, 2008. At that time, he did not shift to C.C. No. 172/1 -25- NOIDA as said property was not in existence then. It was still under construction. He admitted that he was residing at A-15, Sector-50, Rail Nagar, NOIDA. He remained there from 2003 till 2006. The said house belongs to Sh. S.B. Bhanu who was the landlord. He admitted that Dr. Sushma was tenant there and he was residing there at her mercy. Along with Dr. Sushma her two children, maid servant and one dog were there. He denied the suggestion that he had shifted most of his luggage from Rohini to A-15, Sector-50, Rail Nagar, Noida at the time of shifting the house to Vinod Nagar or that he used to stay mostly at A-15, Sector-50, Rail Nagar, Noida with his Bhabhi Dr. Sushma or that his wife used to stay alone during that period at Vinod Nagar. He gave instructions to the petitioner No.1 not to come to his native place when his father expired because it was customary not to allow the newly wedded lady in the last rite ceremony. He admitted that he had filed an affidavit in Domestic Violence case, certified copy of which is Ex. RW1/P-1 and he specifically ratify para No.3 of said Ex. RW1/P-1 (the same is filed by the petitioner that day). He denied the suggestion that he had filed a false affidavit to evade his responsibility and liabilities towards the petitioner. He admitted that in Para 7 of his affidavit in evidence, he had not mentioned the name of the person whom he did not like but now he state that the name of the person was Mr. Rajan Sharma. He could not tell whether this name was true or false. He had never talked to the said Rajan Sharma. The said Rajan Sharma was around 50-55 years old. He could not tell the date when the said Rajan Sharma visited the petitioner but the time was about 3.00-4.00 p.m. That time he was not at home. His neighbour told him, at that time they used to live at Rohini. He could not tell why he had C.C. No. 172/1 -26- not mentioned the name of the said Rajan Sharma in his affidavit. He admitted that he had also not mentioned this fact and name in his written statement. He denied the suggestion that he had given this name and incident just to defame the petitioner. He had mentioned about one Tantrik in Para 7 of his affidavit in evidence, he was the same person to whom he had referred above as Rajan Sharma. He admitted that he had never confronted nor made any complaint to anyone when the petitioner slapped him as stated in Para 7 of his affidavit in evidence. He denied the suggestion that the slapping incident was a lie and have no truth in it and that is why he had neither confronted nor made any complaint against the alleged incident. He denied the suggestion that there was no extreme mental, physical and emotional torture to him as stated in his Para 8 of evidence and that is why he has not mentioned any incident or fact in support of his said allegations. He tried his best to save his matrimonial life in the manner, he only means, that he used to advise her not to tell matrimonial life in public and solve the differences amicably. He denied the suggestion that he was not subjected to taunt, abuse and quarrel for financial crisis in profession.
26. During cross-examination RW2 admitted that Ex. RW2/P1 is a judgment against her. She again said that she did not know about the judgment. She had filed an appeal against the judgment. She again said that she had not filed any appeal against the judgment. She denied the suggestion that the matrimonial life of the petitioner and the respondent had been spoiled because of her conduct and her questionable relation with the respondent or that she took and managed C.C. No. 172/1 -27- all the earnings of respondent Vinod Rai and she used to control his life and take day to day decisions and affairs of his life in the manner she desired. She denied the suggestion that she was deserted by her husband. It is thus seen that the respondent had stated that he was not aware prior to the marriage to the petitioner that she was a divorcee and that she was suffering from epilepsy and he had also produced a document to show that the petitioner was suffering from epilepsy but the said document has not been proved. Moreover, the respondent admitted that he did not take any action against the petitioner after coming to know that she was suffering from epilepsy or was a divorcee and had continued with the matrimonial relation and nothing much turns on this and the respondent had also tried to contend that at the time of mediation, the petitioner straight away refused to reside with him and he had placed reliance upon Section 125 (4) Cr.P.C. to the effect that if the wife refused to reside with the husband without any reasonable cause she is not entitled to any maintenance. However, in the instant case, it is specific case of the petitioner that she was subjected cruelty and it was the respondent who left her and as such also considering the fact that nothing has come out in her cross-examination it cannot be said that she was residing separately from the respondent without any reasonable cause. Whatever happened in the mediation proceedings is subsequent to the filing of the present petition and also cannot be taken into consideration in the present proceedings as the said proceedings even otherwise confidential and it is for the court to see on the basis of evidence whether the petitioner shows that the respondent had refused and neglected to maintain the petitioner. Infact the respondent had C.C. No. 172/1 -28- tried to emphasise that it was the petitioner who was taking care of all the needs and he had even incurred the expenses on marriage and he was not in a positon to support the petitioner. However, it has also come on record that the respondent had not paid any amount towards the maintenance of the petitioner or her child accept after the order of this court. As such, looking to the material on record it cannot be said that the petitioner was not subjected to behavious as stated by her and it stands established that the respondent No. 1 neglected and refused to maintain the petitioner.
27. It is the case of the respondent that the petitioner has been practicing for more than 10 years and is capable of maintaining herself and infact he had emphasised that even prior to the separation it was the petitioner who was taking care of the needs and even he was being given pocket expenses by the petitioner.
28. During cross-examination PW1 stated that she ha completed her LLB in 1997. She was residing in Delhi after completing her LLB course since 1997. She had done her LLB course from B.S.A. College, Mathura, UP. From 1992-1997 and thereafter, she maintained herself on her own. In 1999, she started her practice under Mr. R.S. Kwatra, Advocate, Chamber 151, Patiala House. She was associated with Mr. Kwatra till July, 2003. Thereafter, she started her independent practice. In 2001, she had contested election for the post of Member Executive in NDBA. She had not spent any money in elections since the elections card were printed C.C. No. 172/1 -29- by the brother-in-law of her brother. Near about 15 days, she did not appear in courts for her clients. She admitted that after 1997, she had established herself financially independent. Since 1997-2007, she maintained herself on her own. She volunteered that her brother supported her at the time of need. The proceedings under Domestic Violence Act had been decided by this court. She denied the suggestion that she was in practice that day also and that is why she had maintained her office address for correspondence or that she was capable to maintain herself at present also or that she had deposed falsely and had filed petition on false and frivolous grounds. Thus, the petitioner was extensively cross-examined regarding her source of income. Admittedly, prior to her marriage she was maintaining herself independently and even after the marriage she had been bearing the expenses. However, there is merit in her contention that because she had a small child she was unable to carry on her work while it may not be true that she is absolutely unable to do work and the responsibility of the child would greatly reduced her capacity to work.
29. The Ld. Counsel for the respondent had argued that it has been held that the wife is not entitled to maintenance if she is capable of earning but other circumstances such as responsibility to look after the child have also to be taken into consideration. The Ld. Counsel for the respondent has relied upon Savitri Pandey Vs. Prem Chand Pandey to the effect that a wife has no absolute right of maintenance. Orders passed by Hon'ble High Court in Kavita Prasad Vs. Ram Ashray Prasad, Manokaran @ Ramamoorthy Vs. M. Devaki, Kumarsean Vs. Aswathi, Vijay C.C. No. 172/1 -30- Kumar Vs. Harsh Lata Aggarwal, (2003) 1 MLJ 752 (Mad) Manokaran @ Ramamoorthy Vs. M. Devaki, Shiv Kumar Yadav Vs. Santoshii Yadav, Manish Kumar Vs. Pratibha, Neeraj Aggarwal Vs. Veeka Agarwal (Judgment of Ld. ADJ), G. Mariah Vs. G. Vijayalakshmi, Sanjay Sudhakar Bhosale Vs. Khristina. The law in this regard in well settled but as observed other circumstances have also to be taken into consideration. Moreover, the petitioner No. 2 is a minor child and clearly and incapable of earning herself.
30. It is the case of the petitioner that the respondent is a practicing advocate and is living a luxurious life and has various properties. This was denied by the respondent and he had contended that he was barely able to make both ends meet.
31. During cross-examination RW1 stated that he was born on 5.12.1962. He was enrolled in U.P. Bar Council in 1992. From 1992 to 1999 he was studying in Allahabad and preparing for competition. His enrolment was transferred to Delhi in 1998 or 1999. Seat No. 2 has not been allotted to him but he share it. He was sharing the same with Sunil Rai. He did not pay any rent. He could not say that Seat No. 3 had been allotted to Sunil Rai and not seat No. 2. He volunteered that seat No. 2 had not been allotted to him. He practices in Patiala House and does criminal matters and mostly miscellaneous work. He had membership of Supreme Court Bar Association, High Court Bar Association, NDBA. He did not have membership of Bar Association of Tis Hazari, Rohini or Dwarka. He did not do High Court or Supreme Court matters. He volunteered that C.C. No. 172/1 -31- at time once in 1-2 years he might received matters of Hon'ble High Court of Delhi. He took enrolment in U.P. Bar Council as it was as it was necessary to complete formality for appearance in judicial exams. He had done his studies from Purvanchal University, Jampur (Degree was of same). He came to Delhi to practice. He applied for panel of DLSA but he did not get the same. He applied in 2001 for same. Thereafter, he did not try for same. He denied the suggestion that his practice was of more than Rs. 25,000/- per month or for that reason he did not participate in schemes for lawyer or DLSA panel nor apply for same or that he was a busy lawyer and his matters were regularly listed in Tis Hazari, Patiala House, Dwarka and before Hon'ble High Court. In 1999-2000 he had to get money from house and did not earn anything. There was no fixed earning even then and he was earning Rs. 2-3-5,000/- per month. He used to commute by bus, cycle or motorcycle. He admitted that he had cycle and motorcycle. He had Royal Enfield model 1975 and he purchased the same in 2006. He was residing at A-285, Sector-46, NOIDA. That was not his own house. There was on room 11 X 12 therein for her otherwise it was kothi in 250 Sq. yards. The same belongs to his relative. He resides there as a chowkidar. NOIDA is about 21 Kms from Patiala House. Motorcycle had an average of 40 Kms. It was Bullet 350. The house was of his bhabhi or Smt. Sushma Prasad Sinha. He denied the suggestion that he was doing well in profession and making false story and excuses just to avoid his liability to maintain his wife and his minor daughter. He had 1 mobile phone and 2 mobile Nos. 9811501905 and 9811501158. Both were working in same mobile which was a double sim. Same was a Carbon Model. He did not have mobile No. 9250334123. He C.C. No. 172/1 -32- had it earlier. He did not have any other phone. He had landline No. at his seat 23387838. He volunteered that the same was disconnected for 1 year due to non-payment. He did not have landline No. 0120-6518110. He never had this number. He had one Bank A/c in Patiala House 6133 in Uco Bank. He did not have any other Bank A/s single or joint. He did not remember that he had a joint A/c in HDFC A/c No. 0881000023860. He denied the suggestion that he was deposing falsely in this regard. He did not admit Mark A and same does not bear his signatures. In his knowledge the said A/c is not working. He admitted that he had credit card of HDFC Bank and same was operational and he used it time to time. He had transactions worth Rs. 1,000-1,200/- on that credit card in a month depending on need. He admitted that he received Rs. 1,20,000/- on 11.11.2009 in account in Uco Bank and he did not remember if he received Rs. 25,000/- in same on 6.10.2008. On 5.2.2008 it was not possible that he received Rs. 2 lacs in said A/c but it was possible tht they were withdrawn. He did not remember if he received Rs. 3 lacs on 11.2.2008. He admitted Ex. RW1/A1. He denied the suggestion that he had owned 2 Bullet motorcycles bearing No. UP 50 N 3976 and another one. That motorcycle was registered in his name but he did not use it. He denied the suggestion that he had Carbon Blue colour Maruti Van or that he used it frequently. He further denied the suggestion that at that time he had a laptop and computer. He volunteered that they had been sold now. He denied the suggestion that he used colour TV with DTH facility or he was using it earlier. He had a seat in his name in Patiala House but it was not allotted to him. He denied the suggestion that he was deposing falsely in that regard or concealing fcts fro the court. He was not aware C.C. No. 172/1 -33- of Mark B. He used to use World Space Radio. He volunteered that he got it free as gift. He used it till January-February, 2008. He paid subscription of same vide Ex. PW1/P2. He had 3-4 bighas in his share in agricultural village in UP. His father had 6-7 bighas. He volunteered that they were 2 brothers. He denied the suggestion that he had 10-12 bighas in village out of 20-25 bighas in name of his father. His brother used to grow rice, wheat in same. He was not aware of price of 1 bigha land there. He could not admit or deny the suggestion that price of 1 bigha land was Rs. 3 lacs. He admitted that the land was fertile. He denied the suggestion that sugarcane was also grown there. He was not aware that crop worth Rs. 15,000/- per bigha per season of rice and Rs. 15,000/- per bigha of wheat and sugarcane of Rs. 30,000/- per bigha was grown there or that cumulative yield comes to Rs. 60,000/- from the produce. He denied the suggestion that he was concealing everything from court to avoid paying maintenance and claim of the petitioners or he was deposing falsely or that he had other assets which he had concealed from the court or from the petitioners.
32. During cross-examination RW2 stated that she was residing at the address given in her affidavit for the last one and half year. Before that she was residing at A-15, Rail Nagar, Sector-50, Noida, UP. She had filed one affidavit in this court around 4-6 months back. She again said that she did not remember the date but she thought that recently she had filed one affidavit in this court. Her advocate had written the affidavit so therefore as far as she knew it was regarding some bank C.C. No. 172/1 -34- transaction. Her advocate had given her the written affidavit to get the same signed. She again said that she had dictated the affidavit to her advocate, thereafter she read it before signing and signed the same thereafter. After signing the affidavit she handed over the same to her advocate, thereafter she left for her home. The respondent Vinod Rai told her to come to the court for appearing as an witness. She had come to this court to help the respondent Vinod Rai. She was married in 1981. She had come to this this court for the first time, Before this she had never come to the court. The respondent resided with her till 2004. The respondent Vinod Rai had come to Delhi in the year 1997. She did not know the income of Vinod Rai. She was not supposed to know the personal income of any person including the respondent but she knew that the respondent Vinod Rai was not financially in good shape. He used to borrow money from her, her husband and her family. Her family she meant her mother-in-law and the mother of the respondent, from whom the respondent also used to borrow money. Her mother-in-law and the respondent's mother are house wives. Though she had joint family but she did not know the economic and agricultural resources of her family. But she knew there was a small agricultural land. She again said that there may or may not be agricultural land. Her mother-in-law and the respondent's mother were getting pension. Her husband was residing at Banaras since 1996 after coming back from UK. In 1997 she was residing at Rohini in a rental house for about one year. She admitted that the respondent had also started living with her at the same place. Thereafter, she shifted to her own house at Rohini, Sector-8, Delhi for about six months. The respondent Vinod Rai was with her. Thereafter, she C.C. No. 172/1 -35- shifted to a rented accommodation at Sector-50, Noida. The respondent Vinod Rai resided with her till 2004. At present the respondent was residing at her house which was under construction at Sector-46, Noida. Except food and accommodation which was provided by her, the respondent used to bear his other expenses on his own. Her husband had purchased, she again said she and her husband both jointly purchased two flats at Allahabad, one in the name of the respondent and other in the name of her real brother-in-law. They purchased the flat in the name of the respondent so that documentation might be undertaken in ease. The flat purchased in the name of the respondent had the value of Rs. 30,000-35,000/- at that time. Her husband and the respondent were cousins, son of Chachaji. At the time of purchasing the aforesaid flat at Allahabad, father of the respondent was alive and was working as Draftsman in UP Government. Her husband's elder brother Sh. Ravinder Rai and her husband were looking after and taking care the needs of the respondent. The respondent's father might have helped him scantily. She admitted that she, she again said that they used to bear the expenses of the respondent's for his education. She did not go at Allahabad to sell the aforesaid flat. She denied the suggestion that aforesaid flat at Allahabad was financed by her and her husband. She denied the suggestion that the aforesaid flat was purchased and possessed by the respondent from his own resources or that she was helping the respondent for concealing and wrongly justifying the ownership of the aforesaid flat and accumulation of wealth coming out of the said flat. She had shown the purchase of aforesaid property i.e flat at Allahabad in her Income Tax return filed at Banaras. She had filed her income tax C.C. No. 172/1 -36- return for the financial year 2008 but she had not stated in her income tax return about the income/capital generated through the sale of aforesaid flats. She did not remember the day and month in which the aforesaid flat at Allahabad was sold by her. She admitted that she had abandoned her income tax account at Banaras and she had got afresh Income tax account at Delhi. She was in Govt. Job at Banaras from 1987 to 1992 in January or February. She did not exactly remember the month. She did not give intimation to Directorate of Health, UP with respect to the purchase of aforesaid flats at Allahabad. She denied the suggestion that she did not mention the purchase of property in her Income Tax return filed for the period of the purchase of aforesaid flats. She could not bring the Income Tax return for the year in which she claimed the purchase of aforesaid flat. She denied the suggestion that since she did not purchase the flat, therefore she did not mention the same in her income tax return or to her employer or that for the same reason she had not shown the proceeds from the alleged sale of the flat in her Income Tax return for the period 2008 at Delhi. Sh. Shailender Kumar Upadhyay was the friend of her husband and the respondent, in fact Sh. Shailender kumar Updhyay was their family friend. She struck the deal for sale of aforesaid flat at Allahabad with Sh. Shailender Kumar at telephone only. She denied the suggestion that she had not sold the aforesaid flat to Shailender Kumar. She did not remember the telephone number of said Shailender Kumar. She admitted that the alleged draft for a sum of Rs. 1,20,000/- claimed by her in her affidavit in evidence did not received by her either in person or by post at her address. The respondent had told her regarding the aforesaid demand draft. She did not remember how C.C. No. 172/1 -37- many bank accounts she hold. She admitted that she did not remember as to how many accounts she hold as single account holder or how many she held as joint account holder. She also admitted that she did not remember as to with whom and with which relative she had Joint Bank Accounts. She had mentioned one joint account in her affidavit in evidence but she did not remember the account number. She did bank transactions twice or thrice in a month. She did not remember in which banks she was having bank accounts. She had bank accounts at Delhi and at Noida, UP. She admitted that all bank accounts were mentioned in her income tax return. Joint account stated in Para 9 of her affidavit in evidence was in her name and her son Amritanshu. She admitted that her son Amritanshu also had independent bank accounts. She did not know the account No. in which the demand draft mentioned in para 6 of her affidavit in evidence had been deposited. That demand draft was deposited in the year 2008. She again said that she did not remember if it was deposited in the year 2008 or in the year 2009. She admitted that she had not gone to deposit that demand draft. She had seen that demand draft. She again said that she did not remember if she had seen that demand draft. She had purchased plot No, A-285, Sector-46, NOIDA in February-March, 2008. She did not remember the amount for which she had purchased the aforesaid plot. She had purchased that plot from Smt. Meenakshi Anand. The contractor was constructing basement and ground floor on the said plot. She had entered into an agreement with the contractor but she did not remember the date and month of the said agreement. Besides this Rs. 1,20,000/- the respondent had given around C.C. No. 172/1 -38- Rs. 5-6 lacs approximately she did not remember exactly the amount given to the contractor. She again said that this amount was given on her behalf. She had made the entire payment of the aforesaid plot by way of cash, cheque and demand draft. She did not remember as to how much amount she had paid through cash and through cheque and through demand draft. She did not remember who were the witnesses to the agreement to sell and purchase and related documents executed at the time of purchase of aforesaid plot. She admitted that she had mentioned the purchase of aforesaid plot and the construction in her income tax return. She files her income tax at Delhi. She had her income tax account at Delhi from 1997. She had not brought her income tax returns. She denied the suggestion that she had not shown the said purchase of plot and construction thereon in her income tax return. She denied the suggestion that she had not purchased the aforesaid plot. She did not remember if she was a joint account holder in account No. 0881000023360 in HDFC Bank. She denied the suggestion that the aforesaid plot, mentioned in para 7 of her affidavit infact had been purchased from the earnings of the respondent or that the flat at Allahabad as mentioned in para 4 of her affidavit was not purchased from her fund. She did not remember if she had shared bank accounts in joint names with the respondent or that she also deposited the money given to her by the respondent in her various bank accounts. She denied the suggestion that because she did not like the matrimonial relation of the petitioner and the respondent and in order to break the relationship of the petitioner and the respondent, she had come to mislead and depose falsely in this court or that her husband and she had not backed C.C. No. 172/1 -39- up and supported the respondent. She denied the suggestion that in order to defeat the right of the petitioner and to exercise full control of the resources of the respondent and thus for this motive she asked Vinod Rai to purchase aforesaid plot in NOIDA in her name. She admitted that in mark A at place X neither her name is mentioned nor was it mentioned that it was a joint account. She admitted that mark A did not mention the number of cheques and their distinguish number. She volunteered that Sushma Prasad Sinha was mentioned at the right hand of mark A. She admitted that document mark B did not contain account No. on it. She denied the suggestion that she had concealed the actual sale price of the flat sold at Allahabad in 2008 and also concealed the deposit and use/transaction of sale money received by the respondent or that she was deposing falsely.
33. It is thus seen that RW1 and RW2 were extensively cross- examined regarding their sources of income. It has come in the cross of the respondent that he was having a mobile and a bike. There were certain other investments in property and clearly the respondent is not having a hand to mouth situation as he had sought to contend. He has been practicing for several years now and there is nothing to show that he has any other liability except to maintain the petitioners. At the same time it is also to be borne in mind that the petitioner being a lawyer would also be having earnings though she also has a responsibility to look after the child. Looking to the facts and circumstances of the case, the income of the respondent from all sources is assessed as not less than Rs. 15,000/- per month.
C.C. No. 172/1 -40-
34. Considering the facts and circumstances of the case, the respondent is directed to pay maintenance of Rs. 3,500/- to the petitioner No. 1 and Rs. 2,000/- per month to the petitioner No. 2 receivable by the petitioner No. 1 on her behalf from the date of the order till they are legally entitled to receive the same. It is made clear that the amount of maintenance awarded shall be set off/adjusted against maintenance awarded in any other proceeding between the parties. In addition the petitioners shall be entitled to interim maintenance awarded in her favour till date.
Petition is disposed of. File be consigned to record room.
Announced in open court (GEETANJLI GOEL)
on this 25th day of June, 2010 MM/NEW DELHI
C.C. No. 172/1