Delhi District Court
This Is An Appeal Assailing The Impugned ... vs Rudra Singh Page 1 Of 7 on 27 March, 2023
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IN THE COURT OF SH. SANJAY GARG - I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, DELHI
CA No. 84/2022
Smt. Anjana Singh
W/o Rudra Singh
D/o Lakhan Lal Aggarwal
R/o 3/61, First Floor,
Gali No. 7, Murti Wali Gali,
J Extension, Laxmi Nagar,
Delhi-110092.
Versus
Rudra Singh
S/o Sh. Raja Ram
R/o RB-III, 230/B,
North Railway Colony,
Agra Cantt., U.P.
Also at:
TTE DRM Office,
Agra Cantt, Indian Railways,
U.P.
Date of Appeal : 23.05.2022
Date of Judgment : 27.03.2023
JUDGMENT
1. This is an appeal assailing the impugned order dated 22.04.2022 vide which application moved by appellant seeking maintenance of Rs.30,000/- per month from respondent was dismissed.
2. The brief facts of the case are that the appellant had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter mentioned as D.V. Act) CA 84/2022 Anjana Singh vs. Rudra Singh Page 1 of 7 :: 2 ::
on 24.02.2010 seeking maintenance and compensation from respondent. It is stated that they got married on 14.05.2008 at Arya Samaj Vedic Marriage Mandal, Jamuna Bazar, Delhi. She was a divorcee and had one male male child, aged 15 years, at the time of this marriage. Respondent was working in Indian Railways as TTE and posted at Agra Cantt. Vide order dated 04.06.2013, the Ld. Trial Court had dismissed, the interim maintenance application of the appellant. Thereafter, appellant had filed fresh application in October, 2020, under Section 23(1) of the Act seeking interim maintenance @ Rs.30,000/- per month. This application was dismissed by the Ld. Trial Court vide impugned order.
3. Heard the arguments of Sh. Vijay Laxmi, Ld. Counsel for appellant and Sh. Sanjeev Bhardwaj, ld. Counsel for respondent. Perused the Trial Court record and considered various ground of appeal raised by the appellant.
4. The appellant has raised various grounds of appeal. Primarily on the ground that Ld. Trial Court has failed to appreciate that the application for grant of interim maintenance is an interlocutory application and purpose of the interim application is to avoid destitution and vagrancy. It is stated that there is no express bar to move second maintenance application by the wife. It is stated that the Ld. Trial Court has failed to appreciate the settled legal position.
5. Respondent had contested this appeal by filing reply wherein it is stated that the Ld. Trial Court has rightly dismissed interim maintenance application. It is stated that appellant is a CA 84/2022 Anjana Singh vs. Rudra Singh Page 2 of 7 :: 3 ::
earning lady and has financial means with her as she is owning number of properties. It is stated that appellant has sold shop no. 2 out of property no. B-25, Jawahar Park, Delhi for Rs.2,10,000/-
in the year 2008 and property no. D-61, D-Block, Gali No. 2, Laxmi Nagar, Delhi for Rs.8,00,000/- in the year 2012. Appellant has purchased a property no. D-151, Laxmi Nagar on paying Rs.22,90,000/- in the year 2011 and she has sold the same property, same year, after 8 months for consideration of Rs.25,00,000/-.
6. One other contention raised on behalf of Ld. Counsel for respondent is that earlier, application for interim maintenance moved before the Ld. Trial Court on 04.06.2013 was dismissed and on the same very ground the fresh application is moved by the applicant and the same is liable to be dismissed. It is relevant to mention here that the objective of interim maintenance provisions of D.V. Act is to avoid destitution and vagrancy. In maintenance matters, with a change of circumstance, either of the party can move application seeking alteration of the order of maintenance. Similarly, even if on 04.06.2013 interim maintenance application of the appellant was dismissed, she is within her rights to move fresh interim maintenance application after a gap of the 7 years claiming change of circumstance. Thereby, merely because first interim maintenance application of appellant was dismissed, is no ground that she is barred from moving fresh maintenance application claiming change of circumstance.
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7. Perusal of the Trial Court record reflect that none of the parties have filed income affidavit till date. The case is at the final stage being listed for respondent's evidence. The Ld. Counsel for respondent has vehemently argued that on 04.06.2013 interim maintenance application of the appellant was dismissed as she had purchased property bearing no. D-151, Laxmi Nagar, Delhi for the consideration of Rs.22,90,000/- from one Sunil Kumar Gupta. It is stated that this shows the financial capacity of the appellant and this was the reason for denial of interim maintenance to her previously by the Ld. Trial Court.
8. It is admitted case of the respondent that the property no. D-151, Laxmi Nagar, Delhi was subsequently, sold by the appellant on a consideration of Rs.25 lakh on 01.11.2021. Except the sale of this property for Rs.25 lakh by the appellant there is absolutely no other document on record to show if appellant has any other source of income. In support of his submissions, Ld. Counsel for the appellant has relied upon the observations made by High Court of Judicature at Allahabad, Lucknow Bench Bench dated 04.05.2022 in Criminal Revision 205 of 2016 in case titled as Krishna Devi vs. State of U.P. and Another. Here, the Court has observed that the finding recorded by the Court below, appears to be perverse because if there was some property at Farrukhabad and money out of sale of property was used for maintenance of the children by revisionist, it could not be inferred that the revisionist has lost her opportunity for grant of maintenance under Section 125 Cr.P.C.
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9. No doubt in the last almost 12 years since she had sold the property for sale consideration of Rs.25 lakh, the appellant had to maintain herself as well her son who is the practicing Advocate and representing her in this case. It is the responsibility of the respondent to show that the appellant has sufficient means with her which dis-entitled her to claim any maintenance from the appellant. Even otherwise, it was a duty of the appellant to show that money received by her in November, 2011 got spent by her to meet out her various expenses. The current financial status as well as the status of near future of both the parties could be ascertained from their bank accounts. As per Rajnesh vs. Neha & Anr. (2021) 2 SCC 324, 2021 they are supposed to file bank statements alongwith income affidavits. But as already discussed, none of the parties, till date has filed any income affidavit before the Ld. Trial Court. The other most important point to be considered in this case is that here is a judgment dated 19.01.2019 passed by Ld. Principal Judge, Family Court, East District in petition filed by this appellant under Section 125 Cr.P.C. against respondent. In this judgment, in para no. 23, the Ld. Principal Judge, Family Court has observed that on the basis of document proved on record and testimonies of RW-2 Rajesh Kumar and RW-3 Vijay Kumar, it is established that petitioner Ms. Anjana Singh is the same woman who is petitioner in the present case and she got married to Sh. Sunil Kumar as Mrs. Anjana Aggarwal on 20.12.2010. It was on the basis of this judgment that Ld. Principal Judge, Family Court held that appellant was not entitled to any kind of relief and dismissed her CA 84/2022 Anjana Singh vs. Rudra Singh Page 5 of 7 :: 6 ::
petition. Admittedly by Ld. Counsel for the appellant, who also happens to be son of the appellant, this order has attained finality and has not been challenged before the Superior Court and thereby, the finding given by Ld. Principal Judge, Family Court that appellant got married with one Sunil Kumar on 20.12.2010 cannot be ignored.
10. As discussed above, as per the purpose and objective of the interim maintenance, every change of circumstance entitles either of the parties to move fresh application before the Mahila Court or before the Family Court in the pending litigation. But the change of circumstance has to be shown by the applicant. Here, the Ld. Trial Court had dismissed the interim maintenance application of the appellant on 04.06.2013 and as per the observations made by Ld. Principal Judge, Family Court in his judgment dated 19.01.2019 the appellant got married with one Sunil Kumar on 20.12.2010. Though this has been disputed by Ld. Counsel for the appellant but since the order of the Ld. Principal Judge, Family Court had attained finality, the same cannot be ignored that the appellant got remarried.
11. What shall be the status of this third marriage of appellant with Sunil Kumar on 20.12.2010, as she has not taken divorce from the respondent, is to be considered by the Ld. Trial Court at the time of pronouncing the final verdict in the present matter.
What is the relation of the appellant with Sunil Kumar and why the observation made by Ld. Principal Judge, Family Court on 19.01.2019 is not disputed and challenged by the appellant, no explanation has come in this regard from her side. This petition CA 84/2022 Anjana Singh vs. Rudra Singh Page 6 of 7 :: 7 ::
& the fresh application moved by the appellant are silent about her marriage with Sunil Kumar on 20.12.2010. The Law is settled that when someone seeks equity from the Court must come with clean hands.
12. In view of the aforesaid reasons, I find no reason to interfere in the impugned order dated 22.04.2022. Hence, the present appeal is dismissed.
13. Copy of this judgment, along with Trial Court record, be sent to the ld. Trial Court, for information.
14. Appeal file be consigned to Record Room.Digitally signed
SANJAY by SANJAY GARG - I GARG - I Date: 2023.03.27 16:51:19 +0530 Announced in the open court (SANJAY GARG - I) today on 27th March, 2023 Principal District & Sessions Judge East, Karkardooma Courts, Delhi (pm) CA 84/2022 Anjana Singh vs. Rudra Singh Page 7 of 7