Delhi District Court
Balwinder Singh vs Ms. Amardeep Kaur on 7 March, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Appeal No. 432/17
Balwinder Singh,
S/o Sh. Laljeet Singh Bedi,
R/o House No. 631, 6 Tooti Chowk,
Paharganj, New Delhi55 . . . . . . . . . . Appellant
Versus
1. Ms. Amardeep Kaur,
W/o of Sh. Balvinder Singh
2. Master Jasdeep Singh
Minor, Son of Sh. Balvinder Singh Bedi,
Through his mother and natural
Guardian Ms. Amardeep Kaur
Both Residents of O59,
Sriniwas Puri,
New Delhi110065 ... . . . . . . . Respondent
CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 1
Reserved on : 05.03.2018
Pronounced on: 07.03.2018
JUDGMENT
1. Appellant has filed the present appeal against the order dated 25.07.2017 passed by the court of Learned MM02 (Mahila Court), SouthEast District, Saket Courts, Delhi allowing application of interim maintenance filed by the respondent/complaint against the appellant in the petition under Section 12 of the Protection of the Women from Domestic Violence Act (hereinafter referred to as DV Act) titled as "Amardeep Kaur and another v. Balvinder Singh and others" filed by the respondent no. 1.
2. The appellant is aggrieved by the impugned order as learned trial court has directed the appellant to pay an amount of ₹ 15,000 per month to the complainant and her son towards the maintenance from the date of filing of the complaint i.e. 01.05.2015 till the disposal of the complaint on merit.
3. Brief facts of the appellant are:
i. The appellant was married to respondent no. 1 on 23.03.2017 at Delhi, according to the Sikh Rites and customs. After the marriage, he and respondent no. 1 started living in the matrimonial house at B 80, IInd floor, Mansarover Garden, New Delhi. Both the parties i.e. the appellant and respondent no. 1 had been living happily.
ii. Later on respondent no. 1 adopted attitude and demanded that the matrimonial house no. B80, situated at IInd floor, Mansarovar Garden Delhi be transferred in her name, only then she will allow him and his CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 2 family members to live happily in that house, otherwise she would rope the old and infirm father of appellant and his mother in false, frivolous and vexatious litigations.
iii. When the appellant and his parents expressed their inability to transfer the said property in favour of the respondent no. 1, she started ruining the married life of appellant with respondent no. 1 and she also played havoc with the old ailing father and his mother.
iv. Respondent no. 1 filed a false and vexatious petition under section 12 of the Protection of women from Domestic Violence Act against him, his father and mother only with a mala fide intention to put illegal and unlawful pressure on him and his parents. Appellant has filed his written statement in which he has given all the true and genuine facts and disclosed that due to the above said behaviour and misconduct of the respondent no. 1, his father disowned him by giving the same in the newspaper dated
04.07.2014 and he had to find a job in a hotel on a salary of Rs.15,000/ p.m. v. Appellant has further submitted that he had also to leave the house of his parents, because the respondent no. 1 had falsely implicated his father and mother and respondent no. 1 and her mother and parents also insulted and defamed and committed cruelties against them.
vi. Appellant has submitted that vide the impugned order, Learned trial court has passed the interim order of maintenance on 25.07.2017 whereby he has been ordered to pay Rs.15,000/ to respondents towards their maintenance till the disposal of the complaint on merits.
CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 3
4. Aggrieved by the impugned order, he has filed this revision petition for setting aside the order under revision interalia on following grounds for revision:
i. The learned trial court erred to take into consideration the genuine and true facts brought on record by appellant by filing a written statement in which he had categorically mentioned that he was residing at H. no. 631, Tooti Chowk, Paharganj, New Delhi - 55.
ii. The learned trial court erred to consider judicially that he was earlier working as an employee in the firm of his father and he was getting Rs.10,000/ p.m. till 31.03.2013.
iii. The learned trial court also erred to consider the facts disclosed by him that he was getting a salary at Rs.15,000/ p.m. w.e.f. 01.05.2013 to 31.03.2014. Even then the learned MM ignored these material facts and passed the impugned order which is based on assumptions and presumptions and has no legal sanctity in the eyes of law. He had been drawing salary at the time of marriage to the tune of Rs.15,000/ p.m. only from his father's firm.
iv. Learned trial court has not applied judicial mind to the facts of the case while passing the impugned order and has totally ignored the affidavit regarding his income filed on record.
v. Appellant had also disclosed that after leaving his father's house and job, as he was disowned by his father, he joined the services as Field Officer in ROI Hotels (India) Pvt. Ltd. Chuna Mandi, Paharganj, New Delhi - 55 on 17.07.2015 and was getting the salary of Rs.15,500/ p.m. only w.e.f. 17.07.2015 to June, 2017 and had also produced the relevant documents issued by the Management of the ROI Hotels (India) Pvt. Ltd. Chuna Mandi, Paharganj, New Delhi - 55 and there was absolutely no CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 4 concealment on his part about his financial status i.e. his salary as well as regarding his place of residence after leaving the house of residence after leaving the house of his father and the learned trial court had ordered him to pay the complete salary towards maintenance of respondent no. 1 and 2 without leaving even a single penny with which he needs at least Rs.10,000/ p.m. for his bare necessities of life, i.e. rent for the accommodation, conveyance charges, food and clothings and other Misc. Expenses.
vi. Appellant has submitted that at present he is working as Sales Executive with M/s. Sports Supplement Nutrition Co. at M - 10, Kirti Nagar, New Delhi - 15 and getting salary of Rs.15,800/ p.m. w.e.f. 02.08.2017.
vii. Appellant is aggrieved by the opinion of learned trial court in the impugned order that appellant could easily be assessed to be earning of Rs.60,000/ p.m. and has submitted that the opinion of the learned trial court is not based on any sound, admissible, relevant or any other document.
viii. Appellant has submitted that it was necessary for the learned trial court to have taken into consideration the documents produced by him to show that he was earning about Rs.15,000/ p.m. only and was also living in a rented accommodation.
ix. The learned trial court has also erred to hold that he had furnished information on Jeevnsathi.com to be earning Rs.25 to 30 lacs per annum. In fact those figures had been mentioned as the income of the family i.e. his father and he had no where mentioned that he himself was earning Rs.25 to 30 lacs per month and since the day he was disowned by his father, he was not in a position to take any money from his father.
x. The learned trial court erred to take into consideration the bank account without considering in detail as to how the bank account was being CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 5 maintained by him before marriage. In fact before marriage, it was a joint family and he had the money in the bank which his father and brother had deposited in his account and this amount was in fact belonging to his father who had taken back his money from him because he was disowned by his father due to the callous, bad behaviour and misconduct of respondent no. 1.
xi. Respondent no. 1 is herself well educated lady and she is also capable of working and has absolutely no liability and she could easily earn much more than him and thus she and her son are not entitled to any maintenance because she had left the matrimonial home on her own wrongs and no person can be given any kind of benefit for its own wrongs. The bare reading of the pleadings clearly show that he has not committed any kind of domestic violence with respondent no. 1 and on the contrary the respondent no. 1 with the connivance and conspiracy of her parents had created a havoc atmosphere. That the order of the learned trial court has caused grave miscarriage of justice by not giving a single penny in his favour out of his salary, mentioned above, which has got all the documentary evidence to show that petitioner was genuinely earning said amount.
5. The appellant has prayed for setting aside the impugned order and for using the quantum of maintenance from ₹ 15,000 per month to a reasonable amount which can be easily paid by him and so that he can live with respect.
6. Detailed reply has been filed on behalf of respondent no. 1.
7. Brief submissions of respondent no. 1 CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 6 i. Respondent no. 1 has denied all the submissions made by the appellant and has further submitted that the appellant has averred facts which were never averred by him before learned trial court in his reply to the application of the respondent no. 1 under section 12 of the DV Act.
ii. Respondent no. 1 has submitted that she was driven to file the petition under section 12 of DV Act only due to the harassment, ill treatment and torture meted out to her by the appellant and his family members.
iii. It has been further contended by respondent no. 1 that the alleged disownment of the appellant by his parents is only a false plea raised by the appellant and his parents to deny the respondent no. 1 and her minor child their legal rights and has relied on entries in the bank account details of the appellant to allege that the alleged disownment was a sham.
iv. Respondent no. 1 has submitted that appellant in his own statement before learned trial court on 15.0.2016 stated that at the time of creation of his profile on Jeevansathi.com, the appellant was earning ₹ 15,000 per month while he was in employment of his father and thus cannot allege that the furnished information on Jeevansathi.com to be earning Rs.25 to 30 lacs per annum had been mentioned as the income of the family and he had nowhere mentioned that he himself was earning Rs.25 to 30 lacs per month.
v. The respondent no.1 has submitted that learned trial court has taken into account the appellant's income affidavit, salary slips and bank records and thereafter passed the impugned order and there is no infirmity in the impugned order.
8. Respondent no.1 has prayed for dismissal of the present appeal.
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9. Detailed arguments were advanced by learned counsels for parties.
10. Arguments heard. Record perused carefully.
11. In the impugned order, the learned trial court has observed that the respondent, appellant herein, had furnished his information on Jeevansathi.com to be earning ₹ 25 to ₹ 30 Lacs per annum and has also stated so in his statement recorded before the learned trial court on 15.02. 2016. Appellant has stated that the said finding of learned trial court is wrong. Appellant has submitted that the information furnished on Jeevansathi.com to be earning Rs.25 to 30 lacs per annum had been mentioned as the income of the family and not that of his own. The information of the appellant furnished on Jeevansathi.com has been perused and the submission of appellant in this regard is wrong in view of the said income having been stated on Jeevansathi.com to be his individual income.
12. The duplicate profile posted on the said site is of 21.11.2013. It is further noticed that the appellant has submitted that he was earlier working as an employee in the firm of his father and he was getting Rs.10,000/ p.m. till 31.03.2013 which means even on the date of posting of the profile of appellant, he was allegedly earning ₹ 10,000 per month. The appellant has not explained as to how he assessed his income to be ₹ 20 to 25 lakhs on that date when he posted his profile, i.e. 21.11.2013.
13. The appellant has wrongly stated before learned trial court on 15.02.2016 that the income stated by him i.e. ₹ 20 - 25 lakhs was from his father's business as he was working in the family business of his father. The statement of the appellant that he sought to clarify that he was not paid customer of jeevansathi.com and had created his profile generally and therefore that it is posted by him as per duplicate copy produced by respondent might not be CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 8 available with the said company does not derive credence in view of the contents of his profile posted on jeevansathi.com. The correctness of submissions of appellant cannot be proved by him in absence of leading of evidence. However it is a settled law that the application of interim maintenance is to be decided on the basis of material available before learned trial court by forming a prima facie opinion and by looking at the contents of jeevansathi.com in respect of profile of appellant, the submissions of the appellant in the present appeal or in reply before learned trial court cannot be taken to be correct at this stage.
14. Learned trial court has further observed that allegedly because of quarrel between the parties, he has been disowned by his father and therefore not earning anything from the family business. It is further noticed that appellant had admitted to have 1 bank account in his name. Learned trial court has observed that from the documents available on record and after carefully going through the bank account statements of the respondent i.e. appellant herein, pertaining to his own bank account and the salary slips placed on record, rent agreement, it can be easily assessed that he has been earning sufficiently before the date of separation from the complainant, respondent no. 1 herein and only for the reason that he is not inclined to pay an amount to the complainant, respondent no. 1 herein, he has shown considerable decline in the deposits in his account. By observing this, learned trial court has observed that it cannot be said that the respondent, appellant herein, is unemployed and is a pauper.
15. The appellant is aggrieved by all these findings of the learned trial court. The appellant has also relied on his appointment letter dated 17.07. 2015 and salary slips placed by him on record to contend that he was earning about ₹ 15,000 per month. Appellant has also placed on record certificate issued on behalf of Roi Hotels India Private Limited where it is stated that the appellant was working with them as field officer from April 2016 to March 2017 and was being CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 9 paid ₹ 15,500 per month in cash. However the bank statement for the period of April 2016 to March 2017 does not reveal any deposit of amount of ₹ 15,000 per month by the appellant in his bank account. Rather in the said period, the appellant has deposited amount of ₹ 1 lakh on 21.11.2016. The appellant had addressed the court directly on 05.03.2018 and submitted that this amount was deposited by him as he was having cash of ₹ 1 lakh and deposited the same in bank because of demonetisation. No such submission was made by the appellant before learned trial court. It is further noticed that on 02.04.2016, an amount of ₹ 77,500 has been deposited in the account of the appellant by way of clearing and not by way of cash whereas as per the certificate issued on behalf of Roi Hotels India Private Limited, the appellant was being paid an amount of ₹ 15,500 per month in cash from April 2016 to March 2017. Thus the submissions of the appellant do not inspire confidence.
16. The appellant has also placed on record the rent agreement dated 21.10.2014 reflecting the appellant as a tenant in the property described therein at a monthly rental of ₹ 4000 for a period of 11 months. However in the bank account statement of the appellant, there is no regular or irregular withdrawal of the amount of ₹ 4000 by the appellant from his bank account in the period of those 11 months.
17. It is further noticed that on 23.07.2014, the appellant has deposited an amount of ₹ 37,000 by cash in his bank account. Appellant has explained that to be an amount received towards arrears of his salary. Similarly in respect of deposit of ₹ 1,66,924, ₹1,49, 599, ₹ 3,46, 878 made in account of the appellant on 16.04.2014, the appellant has stated that the whole amount was credited to his account in view of maturing of FD in his favour. However in the affidavit of assets and income of the appellant, in part 6 of the said affidavit, the appellant has nowhere made such submission where he is required to provide details of all CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 10 the investments made by him for a period of 3 years immediately preceding the date of filing of affidavit. It is further noticed that on 05.06.2014, 17.06.2014, 05.07.2014, there have been transfers from the bank account of appellant of amount of ₹ 15,000, ₹ 15,000 and ₹ 6 lakhs to account of Raja videos which is the business of father of the appellant. The appellant has submitted that since the FDs were made by his father in his favour and the maturity amount was deposited in his account, he returned that amount to his father by way of these transfers. It is further noticed that his father disowned him on 04.07.2014, however he still transferred an amount of ₹ 6 lakhs in favour of his father on the date just next to date of his disownment i.e. on 05.07.2014. The correctness of these submissions can only be established by leading evidence and not at the preliminary stage when the trial has not even commenced.
18. All these aspects cannot be considered at the stage of deciding application for interim maintenance and the court has to take a prima facie view on the basis of materials available before it and I find no infirmity in the opinion of the learned trial court in assessing the earning of the appellant to be ₹ 60,000 per month and in fixing the amount of ₹ 15,000 per month towards maintenance for the respondent no. 1 and her son on the basis of material available before it. Learned MM has passed a reasoned order specifically dealing in detail the submissions of both sides while deciding the interim application for maintenance filed by the respondent herein.
19. In view of these observations, I find no infirmity in the impugned order and therefore the present appeal is dismissed for being devoid of merits. Appellant is given time of one week to clear all the arrears of maintenance and to keep on paying monthly maintenance to the respondent in terms of the impugned order.
CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 11
20. Appeal is therefore disposed of in these terms. Copy of the order be sent to Learned trial court along with the trial court record.
21. File be consigned to record room.
Announced in the open (DR. NEERA BHARIHOKE)
court today i.e. 07.03.2018 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally signed
by NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2018.03.08
20:12:50 +0530
CA No. 432/17 Balwinder Singh v. Amardeep Kaur & Anr. 12