Delhi District Court
Smt. Pooja vs Sh. Uttam on 13 March, 2015
IN THE COURT OF Ms. POONAM CHAUDHRY, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
Crl. Appeal. No. : 9/14
Unique Case ID : 02401R0565642014
Smt. Pooja
W/o Sh. Uttam
R/o H.No. 1392, Gali Khatikan
Bagichi Tan Sukh Mubarik,
Ajmeri Gate, Delhi110006. ......Appellant
Versus
1. Sh. Uttam
S/o Sh. Suresh Kumar Kirar
2. Sh. Suresh Kirar
3. Smt. Bimla W/o Sh. Suresh
4. Sh. Laxman S/o Sh. Suresh
5. Smt. Rajni D/o Sh. Suresh
6. Smt. Annu D/o Sh. Suresh
7. Smt. Radha D/o Sh. Suresh
CA No. 9/14 Pooja Vs. Uttam & Ors. 1/6
All R/o H.No.285A, ABlock,
Mangol Puri, Delhi.
....... Respondents
Date of Institution on 13.11.2014
Judgment reserved on 03.03.2015
Judgment delivered on 13.03.2015
JUDGMENT
1. By way of present appeal, the appellant has assailed the Order of Ld. MM dt.16.10.2014 whereby the Ld. MM granted interim maintenance @ of Rs.1000/ per month to the petitioner from the date of filing of the petition.
2. The averments made are that appellant filed a petition U/S 12 of the Domestic Violence Act against her husband and his family members. It is further alleged that the impugned order was passed on the application U/S 23 of the Domestic Violence Act moved by the appellant. It is further alleged that respondents had beaten the appellant and turned out her from the matrimonial home and the appellant is now living with her mother in a rented accommodation. It is further averred that Ld. Trial Court erred in assessing the income of CA No. 9/14 Pooja Vs. Uttam & Ors. 2/6 the respondent no. 1 / husband of the appellant. It is also alleged that respondent no. 1 is contractor manufacture and trader of paper bags and envelops and also is running electric rickshaw and the total income of respondent no. 1 was more than Rs.20,000/ per month.
3. It is further alleged that appellant is illiterate, unemployed and is living at the mercy of her parents whereas respondent no. 1 is man of means and status and does not have any other liability except to maintain his wife (appellant herein). It is also averred that the Ld. Trial Court erred in appreciating the income of respondent no. 1 and awarded Rs.1000/ per month as interim maintenance to the appellant. It is also averred that Ld. Trial Court ought to have awarded Rs. 10,000/ per month to the appellant towards interim maintenance. It is prayed that the order of Ld. Trial Court be set aside and the interim maintenance granted by Ld. Trial Court be enhanced to Rs.10,000/ per month and also give direction of right of residence to appellant in the matrimonial home declaring it to be shared household.
4. The Ld. Counsel for the respondent stated that he did not wish to file reply but opposed the appeal stating therein that there is no illegality in the impugned order and the Ld. Trial Court had rightly awarded Rs.1000/ per month as interim maintenance keeping in view CA No. 9/14 Pooja Vs. Uttam & Ors. 3/6 the income of respondent no. 1 being only Rs.8000/ per month. It is also stated that respondent no. 1 is rickshaw puller and was earning a livelihood with great difficulty. It is also alleged that petitioner had deserted respondent no.1 and was willingly residing with her parents and was earning. It was prayed that the appeal be dismissed.
5. I have heard Ld. Counsel for the parties and perused the record. To determine the quantum of interim maintenance, the Ld. Trial court relied upon the affidavit of respondent no. 1 wherein he had stated that he was earning approximately Rs.8,000/ per month. The Affidavit was filed by respondent no. 1 regarding his movable and immovable properties. The fact that appellant/petitioner had no source of income was not disputed by respondents before the Ld. trial Court. Thus, it was an undisputed fact that the appellant/petitioner had no source of income. The Ld. Trial Court assessed the income of respondent no. 1 to be Rs.80009000/ per month and granted interim maintenance of Rs.1000/ per month to the appellant. The only question to be decided in the present appeal is whether the quantum of maintenance awarded by Ld. Trial Court is just and does not call for interference. The quantum of maintenance has to be decided on the basis of material on record. The expression maintenance includes expenses for food, clothing, residence, medical and other expenses CA No. 9/14 Pooja Vs. Uttam & Ors. 4/6 relating to normal pursuit of life. Thus the needs and requirements of the wife for a moderate living, the earning of the husband, his capacity to earn are the relevant factors to be considered while determining the quantum of maintenance.
6. I am of the view that the Ld. Trial court was rightly of the view that as the petitioner had not placed on record any document to show that respondent no. 1 was earning Rs.20,000/ per month, as such the income of respondent no. 1 could not be taken to be Rs. 20,000/ per month. Moreover, respondent No. 1 had denied that he was working as contractor / trader but stated that he was only rickshaw puller and was earning only Rs.8000/ per month.
7. The order of Ld. MM is based on the prima facie view of the case. The parties have yet to lead evidence to prove their allegation and counter allegations. Thus, it is for the petitioner to prove during trial that respondent no. 1 is earning Rs.20000/ per month. I am thus of the view that there is no illegality in finding of the Ld. Trial Court. However, I am of the view that interim maintenance which has been granted is on lower side, I accordingly enhance the interim maintenance to Rs.2000/ per month. The impugned order is modified to this extent. The amount being received by the appellant in any other CA No. 9/14 Pooja Vs. Uttam & Ors. 5/6 proceedings is liable to be adjusted. The appeal is accordingly disposed off. A Copy of the order be sent to Ld. Trial Court. TCR be sent back. The appeal file be consigned to record room. Announced in the open court on this 13th day of March, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CA No. 9/14 Pooja Vs. Uttam & Ors. 6/6