Delhi District Court
Seenu Suhag vs . Anuj Suhag on 7 August, 2021
Seenu Suhag Vs. Anuj Suhag
Case No. CA/137/2020
07.08.2021
At 2.20 pm
Present: Sh. Mandeep Kumar Sharma, Ld. counsel for appellant
through VC.
None for the respondents.
Vide separate judgment announced through VC, the present
appeal is disposed of.
TCR along with copy of this judgment forthwith be sent back.
Copy be also given dasti to parties.
File be consigned to Record Room.
Copy of order be uploaded on the website.
(Ajay Kumar Jain)
Spl. Judge, NDPS/N. Delhi
07.08.2021
Seenu Suhag Vs. Anuj Suhag & Ors.
Case No. CA/137/2020
07.08.2021
JUDGMENT
Vide this appeal, the appellant/complainant has challenged the impugned order dated 14.08.2020 passed by Ld. Trial Court in CC No. 2091/17 dismissing the prayer of interim maintenance u/s 23 DV Act to the appellant/complainant/wife and her minor son.
Brief facts as per the appeal filed is that both the parties married to each other on 22.04.2015 and it is alleged that at the time of marriage, the complainant was post graduate and working as adhoc PGT teacher in Kendriya Vidyalaya and presently she is working as Lecturer of Political Science at Sarvodaya Kanya Vidyalaya since 22.10.2019. The parents and relatives of complainant gave valuable articles, vehicles, presents, gifts, jewellery and cash in the marriage however after marriage, she was being taunted on every count in the family, and also on account of maintenance of car due to the high petrol rates. After pregnancy, the complainant was not treated properly and was sent to parental home on 19.07.2015 and not taken back to matrimonial house. On 26.01.2016, the complainant gave birth to baby boy however the appellant was not allowed to enter the matrimonial home but on 14.04.2016, she went to matrimonial house and not left the same therefore, the respondents filed the false complaint then respondent no.3 and 4 forcibly took the complainant and baby and dropped her at the parental home, and on the same night, the complainant filed complaint at PS Vasant Kunj (N). Police also filed kalandara. Thereafter, complaint u/s 12 DV Act was filed by the complainant however the Trial Court without appreciating the proper facts dismissed the application for maintenance vide impugned order dated 14.08.2020 in mechanical manner.
In reply it is averred on behalf of respondent/husband that the trial court considered income earning capacity and qualification of both parties CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 1 of 7 and passed the appropriate order. It is also averred in reply that delay in filing appeal is unexplained. The respondent in the present case has been falsely implicated in a kalandara case therefore, filed a complaint dated 06.05.2016 on the basis of which an FIR No. 35/18 was registered with PS Vasant Kunj and because of litigations, the respondent/husband had to resign from his job at Spicejet and presently employed on contractual basis with Air India on a meager salary of Rs. 18,400/. Furthermore, applicant left the matrimonial home at her own will and volition. It is also averred in reply that there is no demand or any physical or mental harassment to the complainant.
Ld. Counsel for complainant submitted that trial court wrongly observed the complainant is an independent lady and has sufficient income to maintain herself and her son. Ld. Counsel submits that maintenance cannot be denied for the son merely on the fact that the mother is employed (relied upon 2017 (4) LRC 711 B (NOC) (DEL), Sukhjinder Singh Saini Vs. Harvinder Kaur 2017(4) LRC 665 (DEL)). Ld. Counsel submits that Hon'ble High Court of Delhi in case titled Jitender Kumar @ Rajan Vs. Kamlesh @ Ganga & Ors. Crl. Rev. Petition 675/2015 dated 10.11.2017 held that both parents have legal, moral and social duty to provide to their child the best education and standard of living within their means. Mere fact that the spouse with whom the child is living even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards maintenance and welfare of child. Ld. Counsel submits that child is responsibility of both mother and father however the trial court not considered the said fact and even not provided any maintenance to child which is improper and thus the impugned order is liable to be dismissed, and respondent be directed to provide sufficient maintenance for the child which is being maintained by the wife.
Ld. Counsel for respondent/husband on the other hand submitted that the accused has been providing ad interim maintenance of Rs. 5000/ CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 2 of 7 per month to the child in the 125 Cr.PC proceedings pending before the Family Court however since the lockdown, unable to pay the said amount. Ld. Counsel submits that accused is merely working as a Cabin Crew with Air India on contractual basis on meager salary of Rs. 18,400/ per month and his parents are also dependent upon him whereas complainant wife is working in a government school drawing net salary of Rs. 65,000/ as observed by trial court in the impugned order. The trial court in impugned order also observed that respondent husband is paying ad interim maintenance of Rs. 5000/ in proceedings u/s 125 Cr.PC before the Family Court. Ld. Counsel submits that therefore it cannot be held that trial court has not considered the maintenance part of the child. Ld. Counsel submits that Apex Court in a recent judgment titled Rajnesh Vs. Neha Crl. Appeal No. 730/2020 dated 04.11.2020 categorically held that the amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/s 24 of HMA. Ld. Counsel submits that therefore the trial court has not granted any maintenance for child as respondent is already paying the same before the Family Court. Ld. Counsel submits that therefore there is no infirmity in the impugned order passed by trial court hence the present appeal is liable to be dismissed.
Heard. Record perused.
The preliminary objection raised by respondent that appeal is barred by limitation as the impugned order was passed on 14.08.2020 however the present appeal was filed on 05.12.2020 and filed beyond 30 days limitation and delay is not duly explained however Ld. Counsel for complainant stated that matter was fixed for order on 30.08.2019 but it kept delayed on one or other pretext and later on the pandemic situation of COVID19 arose due to which the physical functioning of courts got suspended the matter was then put for order on 16.10.2020 however on that day the staff informed that order has already been passed on 16.10.2020 and dasti copy was given to the accused on 14.08.2020. Ld. Counsel submits that the delay is beyond CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 3 of 7 the control and to be considered leniently in present days when for the last 1 ½ years the functioning of court is hampered due to COVID19 situation. Considering the submissions, the delay stands condoned.
Apex Court in case titled Rajnesh Vs. Neha (supra) has framed guidelines on the issue of maintenance. The relevant observations are reproduced as under:
''........................................ ........................................ PART B Given the backdrop of the facts of the present case, which reveal that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and the difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time, we deem it appropriate to frame guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.
.................................................... .................................................... Directions on overlapping jurisdictions It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment.
While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 4 of 7 claimant.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or setoff of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.
.................................................... .................................................... III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a nonworking wife.
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(d) Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular / coaching classes, and not an overly extravagant amount which may be claimed.
CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 5 of 7Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.'' Ld. Trial Court in the impugned order observed that the complainant is working as a Lecturer of Political Science in Sarvodaya Vidyalaya and drawing salary of Rs. 65000/ per month after deduction, and respondent husband hand been working with Air India as Cabin Crew from 22.10.2019 and drawing salary of Rs. 18,400/ and he is also paying ad interim maintenance of Rs. 5000/ per month in terms of directions of Family Court. It is insisted that respondent/husband has also duty to pay maintenance for minor son who is presently staying with mother, and the mother is taking care of all his expenses. However, Ld. Counsel for respondent during arguments stated that respondent is paying Rs. 5000/ ad interim maintenance for the son before Family Court but unable to give the same for last 1 ½ years due to lockdown situation. Ld. Trial court in the impugned order categorically held that the complainant is an independent lady and has a sufficient income to maintain herself and her son. Through there is nothing wrong in this observation of trial court however the burden of upbringing of child is on both the parents and husband cannot avoid the burden merely on the ground that his income is less than that of wife, and others are also dependent upon him.
Considering the fact that respondent himself admitting that he is giving Rs. 5000/ before the Family Court as ad interim maintenance, the respondent/husband is also directed to pay a sum of Rs. 5000/ as an interim maintenance for son Virat from the date of filing of application for maintenance before the trial court. However it is clarified that this maintenance amount is adjustable with the maintenance amount paid before the Family Court or at any other forum in proceedings between both the parties, but there is no infirmity in impugned order rejecting the maintenance for complainant/wife who is earning much more the CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 6 of 7 respondent and having a secured government job. The impugned order dated 14.08.2020 modified to the extent that the respondent/husband is liable to pay maintenance of Rs. 5000/ per month to child Virat in the present proceedings subject to adjustibility with the maintenance provided for the child in proceedings u/s 125 Cr.PC pending before the Family Court or any other forum.
Appeal disposed of accordingly. Copy of this judgment alongwith TCR be sent to trial court. Both the parties to appear before the trial court on date already fixed.
Copy of order be uploaded on the website.
(Ajay Kumar Jain) Spl. Judge, NDPS/N. Delhi 07.08.2021 CA No. 137/2020 Seenu Suhag Vs Anuj Suhag & Ors. Dated 07.08.2021 Page 7 of 7