Delhi District Court
Chanda vs Shiv Prashad Mehra on 28 August, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Appeal No. 31/2015
I.D. No 02403R0116042015
Chanda
W/o Sh. Shiv Prashad Mehra
R/o F-56, J.J. Colony,
Inderpuri, New Delhi.
......Appellant
Versus
1. Shiv Prashad Mehra
S/o Late Sh. Kanahiya Lal
2. Himanshu
S/o Sh. Shiv Prashad Mehra
Both r/o F-56, J.J. Colony,
Inderpuri, New Delhi.
......... Respondents
Date of institution of the appeal : 06.07.2015
Date of reservation of appeal : 20.08.2015
Date of announcement of judgment : 28.08.2015
JUDGMENT
1. This appeal has been filed by the appellant / complainant against the impugned order dated 21.05.2015 by which the Ld. Trial Court granted interim maintenance @ Rs.1000/- per month to the appellant on her application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act").
2. Ld. Counsel for appellant has argued that the interim Chanda vs. State CA No.31/2015 1/5 maintenance @ of Rs.1,000/- per month is insufficient for the appellant to meet her daily requirements. He submitted that during pendency of the proceedings before Ld. Trial Court, the respondent no.1 had himself offered to pay maintenance @ of Rs.3,500/- per month to the appellant and that the amount granted by Ld. Trial Court is even less than the amount offered by respondent no.1 himself. Prayer is made before this Court to enhance the interim maintenance to Rs.5,000/- per month.
3. On the other hand, Ld. Counsel for respondent no. 1 submitted that appellant is his second wife. His first wife had passed away leaving behind two daughters and a son from his first marriage. The property in which parties are residing belongs to the respondent no.2 who is the son of the respondent no.1 from his first marriage. It is submitted that respondent no.1 is a retired government employee receiving pension of Rs.11,000/- per month. The appellant has occupied two floors of the property owned by the respondent no.2 out of which she has let out one portion from which she is earning monthly rent of Rs.4,000/-. It is submitted that the respondent no.1 has performed the marriage of his two daughters and had taken a loan of Rs.1,50,000/- which he is repaying in monthly installments of Rs.3,000/-. It is submitted that the loan was taken from the friend of respondent no.1 who is not charging any interest. It is stated that respondent no.1 has to meet expenses for his daughters at the time of festivals. He has to maintain himself and also to repay the loan amount. Hardly any income is left with respondent no.1 to provide for himself. It is stated that Ld. Trial Court had kept in consideration the fact that the appellant was earning monthly income of Rs.4,000/- and also the fact that two sons from her previous marriage were employed and could look after themselves as well as their mother. He submitted that the Chanda vs. State CA No.31/2015 2/5 appellant has indulged in this litigation only to coerce respondent no.1 to submit to her demands with intention to grab the property belonging to respondent no.2. Regarding the proceedings in the Trial Court on 11.3.2014, he submitted that the respondent no.1 had appeared in person and was under misconception about the proceedings.
4. I have heard the counsel for parties and have perused the record of Trial Court. It is not in disputed that on 11.03.2014, the following order was passed by the Ld. Trial Court:-
"Respondent no.1 submits that he is willing to settle the present matter. Both the parties have talked amongst themselves and it has been settled that respondent no.1 shall pay a sum of Rs.3,500/- per month to complainant. Complainant agrees for the same. Accordingly, put up for payment/ recording of statement for withdrawal on 23.04.2014."
5. Submission made by the respondent no.1 before the Trial Court on 11.03.2014 has not been denied. The appellant has also not contested the fact that respondent no.1 is earning pension of Rs.11,000/- per month. Appellant has two sons from her first marriage while the respondent no.1 has two daughters and a son. The daughters of respondent no.1 are married. The respondent no.1 being a legally wedded husband of the appellant has obligation under custom and law to maintain his wife.
6. In her affidavit regarding assets, income and expenditure, the appellant has stated that she was 9 th class pass. She has two sons. She had no source of income. She claimed to have only property i.e. F- 56, 1st, 2nd and 3rd floors, J. J. Colony, Inder Puri, Delhi. She claimed Chanda vs. State CA No.31/2015 3/5 Rs.10,000/- for house hold expenses, Rs.5,000/- as medical expenses and Rs.1,000/- as litigation expenses.
7. The respondent no.1 in his affidavit disclosed that he is receiving pension of Rs.11,500/- per month. He did not have any deposits or any immovable property. He claimed his house hold expenses as Rs.4000/- to Rs. 5000/- per month. He has claimed medical expenses of Rs. 1000/- per month and payment of Rs.3,000/- to his son as pocket money. He claimed expenses of Rs.3000/- at the time of each festival of his married daughters. Significantly, in para no.4 regarding liabilities he has stated that his liabilities including personal loans were "NIL".
8. Before this Court Ld. Counsel for respondent no.1 orally and in his written submissions claimed that respondent no.1 had taken a loan of Rs.1,50,000/- for which he is re-paying Rs.3000/- per month. However in his affidavit filed before Ld. Trial Court he has mentioned his liability in respect of loans as "NIL". Prima facie the claim regarding availing of a loan and its repayment appear to be incorrect as the same do not find mention in the affidavit of the respondent no.1 regarding his income, etc. filed in the Trial Court.
9. Considering the facts and circumstances of this case, the offer made by respondent no.1 before Ld. Trial Court on 11.03.2014 and the contents of para 4 of the affidavit of the respondent no.1 regarding his income, etc. filed in the Trial Court, I am of the opinion that grant of interim maintenance @ Rs.1000/- to the appellant is not justified. In the opinion of this Court the appellant is entitled to interim Chanda vs. State CA No.31/2015 4/5 maintenance @ of Rs.3,000/- per month from the respondent no.1. The impugned order stands modified accordingly.
10. This appeal is allowed in above terms. Nothing stated herein will be considered to an expression on the merits of the cases of the respective parties.
11. Appeal file be consigned to Record Room. TCR be sent back alongwith copy of this judgment.
Announced in the open Court (REETESH SINGH) on 28th August, 2015 ASJ-02/FTC, PHC/NDD 28.08.2015 Chanda vs. State CA No.31/2015 5/5