Delhi District Court
Mohit Mehta vs 2. Mrs. Nayanika Thakur on 24 September, 2015
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IN THE COURT OF SH. GURDEEP SINGH,
SPECIAL JUDGE (PC ACT), CBI-05 PATIALA HOUSE COURTS,
NEW DELHI.
CA. No. : 22/15
Unique Case ID no. : 02403R0158322015
1. Mohit Mehta
S/o Sh. Ashok Mehta
R/o D-1/49, Vasant Vihar, 2nd Floor
New Delhi ... Appellant
Vs.
2. Mrs. Nayanika Thakur
W/o Sh. Mohit Mehta
R/o D-230, Sarvodaya Enclave
New Delhi. .... Respondent
Date of Institution : 25.08.2015
Date of arguments : 17.09.2015
Date of pronouncement : 24.09.2015
Appearances:
For Appellant: Sh. Harish Uppal, Advocate.
For Respondent: Sh. M.M. Kalra, Advocate.
ORDER
1. This appeal is directed against the order dated 10.08.2015 whereby, learned Metropolitan Magistrate (MM) decided the interim application filed by respondent Ms. Nayanika Thakur under Section 23 of Protection of Women from Domestic Violence Act, 2005 (herein referred to as DV Act) CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 1 of 9 :: 2 ::
2. The relevant facts for the disposal of the appeal are that respondent filed application/ complaint under Section 12 of DV Act stating therein that she is working as Associate Professor with National Institute of Fashion Technology (NIFT); she was married to appellant Mohit Mehta on 07.04.2002; a girl child was born on 17.12.2008 through IVF. It is also alleged that on various occasions, appellant had beaten up respondent after consuming liquor; appellant even duped respondent by taking to accommodation in Gurgaon provided by his employer and later when she went to Mumbai for official work, the appellant shifted from the said accommodation. It is also submitted that the appellant cheated the respondent by purchasing flat in his own name, when even respondent had paid Rs.10 lacs for purchase of the same. The jewellery and istridhan articles are still lying with the appellant. The other incidents of domestic violence has been narrated in the complaint and has requested various reliefs including monetary relief and had sought direction pay the interim maintenance of Rs.3.80 lacs for herself and her minor child Manasvini; order to restrain appellant from visiting the school of daughter and restrain the appellant from selling the properties at Vasant Vihar and Vasant Kunj.
3. Both the parties filed the affidavit in terms of judgment of Kusum Sharma V Mahender Kumar Sharma. In the affidavit, respondent has stated that she is working as Associate CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 2 of 9 :: 3 ::
Professor in NIFT and her gross income is Rs.79,500/-, on which Rs.8000/- is paid as income tax; she is earning Rs. 7500/- per month as interest on FDR; she is earning interest of Rs.5300/- on various investments including PPF. This means that her total monthly income is Rs.84,200/-. (Income is calculated as per the statement of income filed by the respondent).
4. On the other hand, appellant has stated in his affidavit that his gross monthly income is Rs.1,58,407/-. However, he has wrongly calculated his gross annual income as Rs.
18,00,892 (1,58,407 x 12), which is actually Rs.19,00,884 (1,58,407 x 12); he pays income tax of Rs.3,41,339. It is also stated that he earned interest of Rs.33,032 during the year 2014-15 on investments including NSC, KVP etc. Therefore, his total monthly income is Rs.1,32,714/-. (Income is calculated as per the statement of income filed by the appellant).
5. The application/ complaint was contested. It is stated that the salary remuneration of appellant is only Rs.14 lacs per month and that of the respondent is Rs.11 lacs per month including HRA, as per respondent's own admission in GS No. 14/14. It is stated that the respondent's income is almost equal to appellant's. It is further submitted that the appellant is ready to take the custody of child and bear all her expenses; he is already paying the school fee of child. The complainant being Grade 'A' officer can meet her own expenses and she is CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 3 of 9 :: 4 ::
also not entitled to any alternative accommodation in view of the fact that she is getting HRA.
6. Notice of the appeal was given to respondent. Respondent appeared and filed reply to the appeal
7. I have heard Sh. Harish Uppal, Advocate for the appellant and Sh. M.M. Kalra, Advocate for the respondent. I have also gone through the record carefully. Trial court record was summoned, which has also been perused.
8. It is submitted on behalf of appellant that learned Metropolitan Magistrate has committed manifest errors in calculating the income of the appellant and similarly, an error has been committed while calculating the income of the respondent. It is submitted that the income of the appellant is wrongly assessed and learned Metropolitan Magistrate has failed to consider the salary slips of the appellant w.e.f. 2000 to June, 2015 and his ITR. It is further submitted that the income of the appellant is Rs.1.27 lacs per month. Whereas, admittedly the income of the respondent is Rs.90,000/- per month and in addition, she has an income of Rs.12,000/- per month from her FDR, which comes to Rs.1.02 lacs. It is further submitted that as per Form No. 16 for the year 2013-14, her annual income is shown as Rs.12,53,493/-. It is further submitted that the respondent has taken house on rent to accommodate her father since June 2014. Whereas, the CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 4 of 9 :: 5 ::
appellant is paying Rs.23,500/- towards rent. It is further submitted that the respondent herself is earning almost equivalent to the appellant and hence, she is not entitled to any maintenance. He further submitted that she has filed complaint under Section 498A IPC and cited Sherish Hardenia & Ors. V State of M.P. & Anr. 2013(5) SCALE wherein, Hon'ble Supreme Court observed regarding misuse of the same.
9. Learned counsel for the appellant also cited Varsha Kapoor V UOI & Ors. 170 (2010) Delhi Law Times 166 (DB). Learned counsel submitted that the concept of maintenance is for the one, who does not have sufficient income to support herself. But, in the present case, respondent herself is working as Associate Professor and, therefore, maintenance cannot be awarded in her favour. He cited Tarani Kumar Gautam V The District Judge, Mathura & Ors. 1983 ALL. L.J. 1012. Learned counsel also cited Vinny Paramvir Parmar V Parmvir Parmar AIR 2011 SC 2748. It is further submitted that while granting maintenance the Court has to consider the status of both the parties, their respective needs etc. The Court has also to take note that the amount of maintenance should be such, as she can live a comfortable life. At the same time, amount so fixed cannot be excessive and affect the living condition of other party.
10. On the other, hand learned counsel for respondent cited Prashant Ojha V Shalu Ojha 219 (2015) Delhi Law Times 708 CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 5 of 9 :: 6 ::
and submitted that there is no provision in DV Act whereby, the Appeal can be preferred against the interim orders.
11. Hon'ble Supreme Court in Prakash Ojha (supra) has held that Section 23 of DV Act empowers Metropolitan Magistrate to pass interim order, which include the order for interim maintenance. However, there is no provision which provides for Appeal under Section 29 of the Act. However, on the complete reading of the judgment, learned counsel has conceded that this question is left open by the Hon'ble Supreme Court, whether the Session Court has power under Section 29 of the Act to hear appeal against the interim order and has advanced submission on merit. Therefore, without going into the submission whether this Court has power to hear the appeal, I proceed to decide the matter on merit.
12. It is well settled that while deciding the maintenance, the various factors are to be taken into consideration, that is, status of party, reasonable wants of claimant, the independent income and property of the claimant, the number of persons, the non applicant has to maintain, the amount should aid the applicant to live in a similar life style as he/ she enjoyed in the matrimonial home etc.
13. Further, as per judgment of Annurita Vohra V Sandeep Vohra 110 (2004) DLT 546, the entire income of the family is to be converted into one cake and then to be divided amongst CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 6 of 9 :: 7 ::
all the dependents in equal proportion. One additional proportion is to be given to the earning members.
14. Coming to the cited judgments of Vinny Paramvir Parmar (supra), it is stated in the said case that the income of the husband was assessed to Rs.2.40 lacs per month and wife was not working. Her, maintenance was fixed at Rs.25,000/-. It is stated that the said application was under Section 25 of Hindu Marriage Act and since, it is permanent alimony, it has to be more. I am not inclined to accept the ratio as inferred by learned counsel. In the said case, the other dependency of the prospect of him having another family after divorce is also to be taken into consideration. Therefore, accordingly the maintenance was so fixed. Therefore, it cannot be said that in case of assessment of such income, the maintenance would be as determined in the said case.
15. As regards Tarani Kumar Gautam's case (supra), the law has progressed since the said judgment and now, it is settled that the criteria for determination of maintenance is that the wife enjoys the same status as that of her husband and she is entitled to live in same comfort. Therefore, the said judgment is also not applicable.
16. Learned counsel also cited Rani Sethi V Sunil Sethi 179 (2011) DLT 414. It is stated in the said case also, Court observed that purpose of maintenance under Section 24 is to CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 7 of 9 :: 8 ::
provide support, who has no independent income and who is incapable of maintenance herself. In the present case, since the respondent/ wife is herself independent having independent income, therefore, she is not entitled to any maintenance. The complete reading of the said judgment would clearly show that Hon'ble Court has clearly held that word 'support' is not be construed in a narrow manner, so as to bear mere subsistence. The maintenance should be so provided so as live in the similar status as was enjoyed in their matrimonial home.
17. Learned counsel on behalf of respondent has fairly conceded that Rs.7500/- taken as investment by learned MM is incorrect as the same is interest earned by her on her FDRs. However, as regards the income of Rs.12,83,306/- mentioned in the Form 16 of the respondents. The same is disputed by the respondent and has submitted that the same is an error and she has filed a document to show that she has written to her Accounts Department to get the same corrected. Learned counsel for respondent submitted that the same cannot be taken into consideration. It is an apparent mistake, as in the income tax return, the respondent her mentioned her income as Rs.8,06,697/-.
18. As per the law laid down, keeping in view the status of the parties and reasonable wants of the child and the respondent/ wife, I am of the opinion that the reasonable and CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 8 of 9 :: 9 ::
just maintenance can be fixed by making the income of entire family into one cake and then dividing.
19. In the present case, the income is to be divided into five parts, that is, one share for the child, two shares each for both, appellant and respondent, as the earning members get one additional share. The total income of the family is Rs. 2,16,914 (Rs.1,32,714 + Rs.84,200/-), which after dividing in five shares comes to each share of Rs.43,382/-. As discussed above, the earning members get one extra share however, in the present case the respondent/ wife is earning Rs.84,200/- per month, which is almost equivalent to the share she would get from the entire family's income, therefore, she is not entitled to any maintenance. However, keeping in view the reasonable wants of the child, monthly maintenance of Rs. 45,000/- would be paid to child Manasvini including Rs.8000/- which the appellant was already paying, from the date of application. Other directions need no interference. The order of learned MM is modified to the extent stated above.
Trial Court Record be sent back.
Appeal file be consigned to record room.
Announced in the open court on (GURDEEP SINGH) 24th September, 2015 ADDITIONAL SESSIONS JDUGE SPECIAL JUDGE (PC ACT): CBI-05 NEW DELHI/ 24.09.2015 CA No. 22/15 Mohit Mehta Vs. Nayanika Thakur Page No. 9 of 9