Delhi District Court
Rajiv Kumar vs Anju on 16 September, 2015
CA Nos. 130/15 and 138/15
IN THE COURT OF SHRI ANIL KUMAR:
ADDITIONAL SESSIONS JUDGE03 : DWARKA COURTS : DELHI
In the matter of:
Criminal Appeal No. 130/15 (filed on 01.08.2015)
Rajiv Kumar
S/o Shri Ram Kishan
R/o H. No. T650/H5/2A,
Baljeet Nagar, West Patel Nagar,
Near Janta Park, Road No.21,
New Delhi ...Appellant
Versus
Anju
W/o Shri Rajiv Kumar
R/o RZG263, Raj Nagar PartII,
Near Pandit Chowk,
Palam Colony, New Delhi ... Respondent
and Criminal Appeal No. 138/15 (filed on 10.09.2015) Anju W/o Shri Rajiv Kumar R/o RZG263, Raj Nagar PartII, Near Pandit Chowk, Palam Colony, New Delhi ... Appellant Versus Rajiv Kumar S/o Shri Ram Kishan R/o H. No. T650/H5/2A, Baljeet Nagar, West Patel Nagar, 16.09.2015 Page no. 1 /8 CA Nos. 130/15 and 138/15 Near Janta Park, Road No.21, New Delhi ...respondent Arguments heard on : 16.09.2015 Judgment pronounced on : 16.09.2015 :JUDGMENT:
1. Since, aforesaid both appeals are arising out of common impugned order, hence, vide this common judgment, I shall dispose of both appeals under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as DV Act) filed by husband and wife against each other, against the impugned order dated 02.07.2015 passed by the Ld. Metropolitan Magistrate, Dwarka Courts, New Delhi under Section 23 of DV Act whereby husband has been directed to pay interim maintenance to wife @ Rs.5,000/ per month towards maintenance of child, from the date of filing the petition before the Ld. Trial Court under Section 12 of DV Act.
2. Brief facts necessary for disposal of the present appeals, as per the complaint of the complainant/wife before the L.d Trial court are that the wife has filed a complaint under Section 12 (1) (35) read with Section 17 to 23, further read with Rule 6 (1) Form (ii) of the DV Act against her husband, motherinlaw, fatherinlaw and brotherinlaw 16.09.2015 Page no. 2 /8 CA Nos. 130/15 and 138/15 (devar) alleging that her marriage was solemnized on 01.12.2011 according to Hindu Rites and Customs and out of the said wedlock one male child was born on 31.12.2013. It is alleged in the complaint that the marriage was performed as per the desire of the husband and his family members and approximately Rs.1517 lacs were spent in the marriage. During her stay at the matrimonial home, the complainant/wife was harassed and tortured physically and mentally by her husband and his family members on account of not bringing sufficient dowry and she was met with utmost atrocities and mental torture. On 19.08.2012, when the complainant/wife was two months pregnant, her husband and his family members threw her from the stairs, due to which the complainant/wife suffered miscarriage. It is further stated that husband and his family members used to snatch the salary of the complainant/wife every month and did not give her even a single penny for her day to day expenses. It is also stated that during her stay at her matrimonial home, the complainant/wife was physically and mentally harassed by her brotherinlaw against whom she made a complaint to the police at Patel Nagar as well as in the women cell. It is also stated that when the complainant/wife was second time pregnant, on 09.05.2013 she was again beaten up very badly by the husband and his family members when she refused the sex determination of child as a 16.09.2015 Page no. 3 /8 CA Nos. 130/15 and 138/15 result of which, on 15.06.2013, the husband and his family members threw the complainant/wife out from her matrimonial home and since then the complainant/wife is residing at her parental home. It is further stated that due to the beatings and maltreatment given to the complainant/wife by the husband and his family members, she gave birth to a immature child on 31.12.2013. Due to all the mental and physical torture attributed to the complainant/wife by her husband and his family members, she filed the complaint U/s 12 of DV Act before the Ld. Trial Court.
3. During trial, while granting interim maintenance, by way of impugned order, Ld. Trial Court directed the husband to pay a sum of Rs.5,000/ per month towards the interim maintenance of child of the parties which include expenses towards food, lodging, schooling, medical expenses etc.
4. Feeling aggrieved by the impugned order, wife has assailed the same on the grounds that it suffers from legal infirmity as the wife herself had prayed for an interim maintenance of Rs.25,000/ and the impugned order is also unsustainable as the same is against the present scenario of high cost of living. It is further alleged that the Ld. Trial 16.09.2015 Page no. 4 /8 CA Nos. 130/15 and 138/15 Court has ignored the lavish life style of the husband, being the father of the child, he owes full duty to maintain his child as he has admitted the paternity of the child. It is also alleged that the Ld. Trial court has failed to appreciate the fact that husband has himself admitted in his affidavit that he is withdrawing in hand salary of Rs.37,810 p.m., paying nearly income tax of Rs.15,409/ and usually goes on foreign trips more than twice a year and the wife alongwith her child are entitled to the lavish life style as being enjoyed by the husband and also that husband has a moral as well as social duty to maintain his wife and son. It is further alleged that the wife is totally dependent upon her father for monetary needs in life and on the other hand husband is having no responsibility as his parents are themselves earning income through rent of various properties. It is also alleged that the Ld. Trial Court has failed to appreciate the fact that the interim maintenance granted, only to the minor child, is a meager amount which is not sufficient to take care of his daily basic needs and to maintain his health as a premature child and it is also very difficult for the wife to take care of the child and earn her livelihood, at the same time for which she has to bear some extra expenses which will not be meted in such a meager amount. On these grounds the wife has prayed for enhancement of interim maintenance from Rs.5,000/ to Rs.25,000/.
16.09.2015 Page no. 5 /8 CA Nos. 130/15 and 138/15
5. Feeling aggrieved by the impugned order, husband has assailed the same on the grounds that it suffers from illegality and impropriety and is unsustainable as the same has failed to consider the various judgments passed on this issue involved in the case. It is also alleged that the Ld. Trial Court has failed to consider that the wife has herself admitted that she is drawing a salary of Rs.50,979/ p.m. plus Rs.12,000/ p.m. for accommodation/rent and also having other movable and immovable properties and that the salary of the wife is more than her household expenses and as such she does not require any monthly maintenance from the husband. It is further alleged that the Ld. Trial court has failed to appreciate the fact that wife is earning more than the husband and she is able to maintain herself and her minor child and thus, she is not entitled for maintenance from the husband. It is further alleged that the Ld. Trial court has failed to appreciate that husband is having responsibility of his old aged parents who are unemployed and are fully dependent on the income of their son. It is further alleged that the Ld. Trial Court has failed to consider that the minor child is aged about 1 ½ years and is not studying in any school and the wife is working with JPN Trauma Centre, AIIMS hospital and she also takes entire medical benefits for herself and her minor child. On these grounds the husband has prayed for setting aside the impugned order. 16.09.2015 Page no. 6 /8 CA Nos. 130/15 and 138/15
6. Arguments heard. Ld. Counsel for both the parties have argued on the line of contents of appeal. Trial court record perused. I have given thoughtful consideration to submissions made by Ld. Counsels for both the parties.
7. During the course of arguments, it has been conceded/clarified by the Ld. Counsel for wife that by way of her appeal, she has challenged impugned order only qua the interim maintenance granted for child and she is not claiming any interim maintenance for herself. He has further submitted that interim maintenance granted by the Ld. Trial Court is not adequate and the same should be enhanced to Rs.7,000/.
8. Ld. Counsel for husband has submitted that husband is liable to maintain his child, but interim maintenance amount to be paid by him should have been fixed in proportion of income of both the parties. He has further submitted that interim maintenance for child fixed by the Ld. Trial Court is excessive and should be reduced.
9. As per affidavit and documents submitted by the parties on Trial Court Record, I find that both the parties are employed with under 16.09.2015 Page no. 7 /8 CA Nos. 130/15 and 138/15 government. Wife is drawing gross salary of Rs.56,651/ p.m. excluding rent of Rs.12,000/ p.m. and husband is earning Rs.37,810/ p.m. on account of salary. They are having only one child of 1 ½ years of age. Both the parties are equally liable to maintain their child. Ld. Trial Court has ordered interim maintenance of Rs.5,000/ p.m.
10. Keeping in view facts of the case, joint liability and status of the parties, it cannot be said that this amount is inadequate or excessive. Considering the needs of child of the parties to the present case, I find that interim maintenance fixed by Ld. Trial Court is adequate.
11. As such I find no error or infirmity in the impugned order passed by Ld. Trial Court. Same calls for no interference. Hence, both the appeals are hereby dismissed.
Announced in the Open Court on 16th day of September, 2015. (Anil Kumar) ASJ03/ Dwarka Courts Delhi/16.09.2015 16.09.2015 Page no. 8 /8