Delhi District Court
Sandeep Kumar vs Mrs. Shilpa Kumar on 21 December, 2012
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ03 (EAST) KARKARDOOMA COURTS, DELHI
Crl. (A) No.43/12
Sandeep Kumar
S/o. Late Sh. Suresh Kumar
R/o. E6/34, Arera Colony, Bhopal,
Madhya Pradesh.
........... Appellant
Versus
Mrs. Shilpa Kumar
W/o. Sh. Sandeep Kumar
R/o. Flat No.149, Karishma Apartment
Plot No.27, I.P.Extension, Patparganj,
New Delhi110092. ........... Respondent
ORDER
1. By this order I shall dispose of the appeal u/s 29 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), filed by the appellant against the order of Ld. MM, granting interim maintenance to the respondent for herself and the minor daughter of the parties.
2. The respondent had filed an application u/s. 12 alleging cruelty by Crl. (A) No.43/12 Page1 of 10 Sandeep Kumar Vs. Shilpa Rastogi the appellant and claiming apart from other reliefs an order of maintenance, which was objected by the appellant on the ground that respondent was not entitled to the relief of maintenance because she was living an adulterous life; she had no reason to live away from the appellant and she was an educated and capable woman, who could maintain herself.
The Ld Trial Court granted the maintenance to the respondent, which order has been challenged by the appellant by way of present appeal on the following grounds:
● That the Ld. MM has failed to take into consideration the voluminous record filed by the appellant and more specifically the Divorce petition placed on record.
● The maintenance granted is on higher side and is more than what the appellant's basic salary is.
● The respondent had left the matrimonial home due to an adulterous relation of which the proof is on record. ● The submissions and the judgment referred to and cited by the appellant were not considered by the Trial Court.
3. Arguments heard. Record perused.
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4. The main argument of the Ld. Counsel was that the respondent was living an adulterous relationship of which the evidence was filed in the Trial Court in form of CD and call records. The Trial Court, however, did not consider these documents while passing the order. She argued that section 125 (4) Cr.P.C says that an adulterous woman is not entitled for maintenance. She argued that the respondent was having an affair with Deepak Singhal and had purchased a mobile phone in the name of Shilpa Singhal, with which she used to call Deepak Singhal 30 times in a day and their used to be an exchange of unlimited SMSs. She alleged that father of the respondent used to threaten the appellant. She argued that the respondent is getting a monthly salary of Rs. 60,000/ and is willing to pay one third of it to the respondent.
5. Ld. Counsel for the respondent on the other hand argued that the allegations of adultery have in fact come as a counter blast to the allegations, which respondent had made against the petitioner. The respondent alleges that appellant was having an immoral relation with one Anuradha Sapra to whom he used to send 100 to 200 messages in a day. When this was objected to by the respondent, the appellant in a planed way created evidence of immoral relation against the respondent. He argued that CD filed Crl. (A) No.43/12 Page3 of 10 Sandeep Kumar Vs. Shilpa Rastogi by the appellant was found inaudible by the Court. He argued that it was the appellant, who had purchased a mobile in the name of respondent and he used to talk to Deepak Singhal, to create evidence. The respondent was beaten and thrown out of the house and her tickets to come back were purchased with the assistance of neighbours. It was argued that the company of the appellant had given a house to the appellant, in common sharing with alleged Deepak Singhal and the respondent always objected to the stay of this person in the house. Later on because of her insistence the appellant changed the house.
6. All the allegations and counter allegations should not be a part of an order on interim application and the appeal against such order, but have been mentioned so that none of the party takes an objection later on that all the averments made were not considered and the voluminous record was not seen. It, however, is stated here relevantly that it is not the volume but the content, which is required to be seen and considered by the Court while passing orders. The Magistrate's court, which is otherwise overburdened, can in its discretion limit its orders on the relevant issues at the time of deciding the interim applications. This has been held so by the Hon'ble Higher Courts in number of judgments.
Crl. (A) No.43/12 Page4 of 10 Sandeep Kumar Vs. Shilpa Rastogi The interim relief was to be decided on one issue i.e. whether or not respondent being the wife was entitled to maintenance and was there any ground, which could disentitle her of her claim, without going into evidence.
7. Ld. Counsel for the respondent has relied upon the judgments of Hon'ble Delhi High Court in 2011 (4) CCC 529 Jayant Bhargav Vs. Priya Bhargav and 2011 (4) CCC 165 (SC), Vineet Paramvir Parmar Vs. Paramvir Parmar, wherein the Hon'ble Courts have held that the status of the parties is important while deciding the maintenance.
He has also relied upon the judgment of Hon'ble Bombay High Court in Chandra Kant Ganga Ram Gawade Vs. Sulochana Gawade 1996 (3) RCR 215, wherein the Bombay High Court had held that whether wife is living in adultery is a question of fact and the husband has to plead and prove the allegation. The Hon'ble High Court had categorically said that such a point cannot be decided on mere application of husband even if he had obtained a decree of divorce on ground of adultery of wife.
The judgment supports the observation of Ld. Trial Court that whether or not respondent was leading an adulterous relationship, is a matter of evidence and cannot be looked into at this stage( the stage of Crl. (A) No.43/12 Page5 of 10 Sandeep Kumar Vs. Shilpa Rastogi passing interim order).
Hon'ble High Court of Orissa in 1987 Cr. L.J 665 Rachita Rout Vs. Basant Kumar Rout and in 2002 Cr. L.J 3418, Laxman Naik Vs. Nalita @ Lalita Naik had held that a single act of adultery is not enough for refusing maintenance u/s 125 Cr.P.C. To bring the case u/s 125 (4) Cr.P.C. the adulterous conduct must be more or less continuous. Though this (single adulterous act) can be a ground for judicial separation, it cannot be a ground to deny maintenance to the wife.
The similar is the finding of Hon'ble Madras High Court in 1964 (1) Crl. L.J. 105 (1) (Vol. 68 C.N. 36), of Hon'ble High Court of Jammu Kashmir in 1971 Crl. L. J 158 (Vol. 77 C.N.50), of Hon'ble Bombay High Court in 1977 Crl. L J 391, and of Hon'ble Rajasthan High Court in 1989 Crl. L. J 729.
In the present case admittedly, the appellant has filed some CDs and call records before the court. It is also true that there is an observation of Trial Court that the CD was not audible. Ld. Counsel for the appellant claims that the CD should have been sent to FSL for voice testing. Assuming that the CD is sent to FSL (which may be done by the Ld. Trial Court in its discretion at appropriate stage), the report of FSL will have to be tendered in evidence. Both the parties are leveling allegation of adulterous relationship against each other Crl. (A) No.43/12 Page6 of 10 Sandeep Kumar Vs. Shilpa Rastogi and are also naming the person with whom the other person is having the immoral relation. Both are stating that the phone calls were made, to the respective alleged partner of adulterous relations, by the other party. Both are claiming that his/her phone was either procured or misused by the other party. The entire issue, therefore, becomes a matter of trial.
8. Ld. Counsel for the appellant has relied upon the judgments of:
(i) Hon'ble Supreme Court in AIR 2003 SC 3174, titled Dev Narayan Haider Vs. Anu Shree Haider . The judgment is of a case where the matter was finally heard and decided by the trial court after taking the evidence.
(ii) II 2011 DMC 718 (DV), Neelam Vishit Vs. Narender Vishit in this matter also the trial court had after evidence arrived at a conclusion on whether there was any justification on the part of appellant wife to withdraw from the company of the husband and the Hon'ble High Court of Uttrakhand had also considered the evidence led before the Trial Court to arrive at the conclusion that the wife had no reason to withdraw from the company of the husband.
(iii) I (2011) DMC 261 Soma Mullick Vs. State of West Bangal wherein again the Hon'ble Calcutta High Court appreciated the facts Crl. (A) No.43/12 Page7 of 10 Sandeep Kumar Vs. Shilpa Rastogi having come in evidence to conclude that the wife had no reason to live away from the husband and similar is the situation in the judgment of Hon'ble Calcutta High Court in I (2011) DMC 218 titled Samita Saha Vs. Mohan Saha.
All the judgments filed and relied upon by the appellant before the Trial Court are on the issue whether the wife had justified reason to stay away from the husband, and in all the judgments the decision was taken by the concerned Trial Court after considering the evidence led by both the parties.
The present petition is at the stage of interim maintenance where the evidence is yet to be led and witnesses are to be tendered for crossexamination. The allegations, as are made by the respondent in her complaint, prima facie, make a ground for her staying away from the company of appellant. The correctness of her claim cannot be judged without the evidence being led.
9. Ld. Counsel has also relied upon the judgment of Hon'ble Delhi High Court in II 2010 DMC 574, Sanjay Bhardwaj Vs. State & Anr. Hon'ble High Court in the said matter had held that where the husband is employed holding a degree of M.B.A, he cannot be treated different from the unemployed wife Crl. (A) No.43/12 Page8 of 10 Sandeep Kumar Vs. Shilpa Rastogi holding a degree of M.B.A. The facts of this case, however, are not applicable to the present case as appellant was admittedly not unemployed and the respondent was admittedly not employed on the date of passing of order.
10. The adulterous relationship in view of above discussion and the cited judgments, is an issue of fact, which cannot be decided without going into the evidence and further it needs to be proved that the act is a continuous act as per the requirement of section 125 (4) Cr.P.C and not a stray incident of occasional lapse. The appellant as such has to prove in evidence that the conduct of respondent was such that she can be covered within the meaning of 'living in adultery' as defined u/s. 125(4) Cr.P.C and as interpreted by the Hon'ble High Courts in various judicial pronouncements cited hereinabove. Similarly the decision as to whether she was justified in living away from her husband, can also be considered only after leading of the evidence.
The other contention of the appellant is that the appellant is earning a basic salary of Rs. 57,000/ only and other emolument given to him like travel, medical etc. are subject to his performance. His salary as such is Rs.57,000/ and not Rs.1,58,000/. Ld. Trial Court in arriving at the conclusion Crl. (A) No.43/12 Page9 of 10 Sandeep Kumar Vs. Shilpa Rastogi on the income of the appellant has relied upon the salary certificate filed by him. The salary slip says that the gross basic pay of the appellant is Rs. 58,710/ and special allowances are Rs. 73,700/. It is not stated anywhere in the salary slip that the special allowances are dependent on any contingency as is being claimed by the appellant. The appellant as such as per the document filed by him is earning more than Rs. 1,20,000/. Trial court has rightly judged the needs of the wife and minor child depending on the status of the family.
11. The other grounds like appellant having taken due care of the respondent during her stay; the photographs; his factual submissions regarding whatever happened in their matrimonial life, are the issues, which are to be decided on the basis of evidence. The same cannot be considered and have rightly not been considered by the Trial Court while disposing off the interim application. There is no infirmity or illegality in the order of Ld. Trial Court. Appeal is dismissed. Trial Court record be sent back alongwith a copy of this order. Appeal file be consigned to record room.
Announced in the open
court on 21.12.12 (ANURADHA SHUKLA BHARDWAJ)
ASJ03, (EAST) KKD COURTS, DELHI/21.12.12
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