Delhi District Court
Sumit Das vs Shivan Das on 26 October, 2018
IN THE COURT OF SH. SANJEEV KUMARII,
ADDITIONAL SESSIONS JUDGE05, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO.467/2017
In the matter of:
Sumit Das
S/o Shri Santosh Das
R/o J5, Kasturba Niketan Complex,
Lajpat NagarII, New Delhi ........Appellant
Versus
Shivan Das
W/o Shri Sumit Das
R/o 17A, Gali No. 25B,
Molarbarid, Badarpur, New Delhi .......Respondent
Instituted on : 29.11.2017
Reserved on : 13.09.2018 & 03.10.2018
Pronounced on : 03.10.2018
JUDGMENT
This criminal appeal has been preferred under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short "DV Act") against the impugned order dated 10.10.2017 passed by learned Metropolitan Magistrate/Mahila Court03, SouthEast District, Saket Courts, New Delhi in CC No. 7650/2017 under Section 12 of the DV Act, titled as "Shivani Das v. Sumit Das" whereby application under Section 23 of the DV Act filed by the respondent herein was allowed and CA No. 467/2017 Sumit Das v. Shivani Das Page No.1 of 7 appellant was directed to pay a sum of Rs.20,000/ per month to complainantrespondent towards interim maintenance.
2. The respondent herein has filed an application under Section 12 of the DV Act against the appellant and others before the learned Metropolitan Magistrate. Affidavit of income, expenditure and assets have been filed by the appellant and respondent in the said application under Section 12 of the DV Act. By impugned order, maintenance has been granted in favour of respondent herein. Hence, this appeal.
3. Learned counsel for the appellant has submitted that appellant was earlier earing Rs.10,000/ per month but at present, he is earning about Rs.17,000/ per month. Appellant is ready to bring home the respondent. Respondent herein has prayed for Rs.20,000/ per month as interim maintenance in application under Section 23 of the DV Act and learned Trial Court has granted Rs.20,000/ per month as interim maintenance. The appellant is ready to pay the maintenance of Rs.8,000/ to 10,000/ to the respondent. Minor daughter has been mentioned in the application filed by the respondent herein whereas the daughter was born later on after the impugned order. Learned counsel has placed reliance upon the decisions, namely, Kalyan Dey Chowdhury v. Rita Dey chowdhury Nee Nandy, AIR 2017 SC 2383; Sh. Bharat Hegde v. Smt. Saroj Hegde, 140 (2007) DLT 16; Sanjay Bhardwaj & Ors. v. The State & Anr., 171 (2010) DLT 644; Merubhai Mandanbhai Odedara & Anr. Raniben Merubhai CA No. 467/2017 Sumit Das v. Shivani Das Page No.2 of 7 Odedara, AIR 2000 Guj 277 and Manmohan Kohli v. Natasha Kohli, MANU/DE/4193/2013.
4. Per contra, learned counsel for respondent has opposed the appeal stating that respondent has incurred medical expenses. Appellant is a Company Secretary and he is earning Rs.50,000/ per month. Minor female daughter (nine months old) of the respondent is residing with the respondent. The daughter was born on 05.12.2017. The daughter of nine months is residing with the respondent. This is the second appeal and first appeal was dismissed earlier which was filed against other order. In execution petition of the present case, appellant has been declared as proclaimed offender by learned Metropolitan Magistrate and therefore, present appeal is not maintainable.
5. In case of Shailja & Anr. v. Khobbanna, Criminal Appeal Nos.125 126 of 2017 decided by the Hon'ble Supreme Court on 18.01.2017, it has been observed/held that the High Court has proceeded on the basis that the appellant no.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court ; that whether the appellant no.1 is capable of earning or whether she is actually earning are two different requirements; that merely because the appellant no.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
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6. In Shamima Farooqui v. Shahid Khan, [Criminal Appeal Nos.564 565 OF 2015], Hon'ble Supreme Court observed in para no. 15 : "15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2,000/. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs. 2,000/ per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain himself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of CA No. 467/2017 Sumit Das v. Shivani Das Page No.4 of 7 the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right. ................"
(emphasis supplied)
7. By impugned order, learned Metropolitan Magistrate has allowed application under Section 23 of the DV Act and has granted interim maintenance to the respondent herein.
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8. Marriage is admitted between the parties. The birth of a child out of the said wedlock is also admitted. It is also admitted that the said female child aged about nine months is living with the respondent herein. Impugned order was passed on 10.10.2017 but the female child was born on 05.12.2017 i.e., after the impugned order as submitted by both the parties. In impugned order, there are no mentioning of maintenance regarding female child of the parties. Further, in the impugned order, nothing has been stated in respect of female child of the parties. There are prima facie allegations in respect of domestic violence in the complaint/application under Section 12 of the DV Act.
9. It is settled law that husband is under a legal obligation to maintain his wife according to the living standard enjoyed by her in the matrimonial home if she is unable to maintain herself. It is not in dispute that respondent herein is unemployed. The appellant is a graduate. During the course of arguments, learned counsel for appellant has submitted that appellant was earning earlier Rs.10,000/ per month but at present, he is earning Rs.17,000/ per month. In his affidavit regarding assets, income etc., the appellant has stated that he is having professional qualification i.e., Company Secretary and he is working as Compliance Officer. During the course of arguments, learned counsel for appellant has submitted that appellant is ready to make payment of Rs.8,000/ to 10,000/ per month as maintenance to the respondent. Keeping in view the professional qualification of the appellant and other facts, learned Metropolitan Magistrate had assessed the monthly income of the CA No. 467/2017 Sumit Das v. Shivani Das Page No.6 of 7 appellant to be Rs.40,000/ per month. Learned Metropolitan Magistrate had taken into consideration medical condition of the respondent herein and had granted interim maintenance of Rs.20,000/ per month to the respondent herein. If Rs.40,000/ per month is assessed the income of the husband and then, same should be divided into three parts (because at that time, child was not born out), out of which two parts should remain with the husband and one part should be given to wife as maintenance. Learned Metropolitan Magistrate has not taken into consideration the maintenance of the female child and said child was born after the impugned order. Keeping in view the income assessed by the learned Metropolitan Magistrate and the submission of learned counsel for the appellant that appellant is ready to pay maintenance of Rs.8,000/ to 10,000/ per month to the respondent, maintenance as awarded by the learned Trial Court is reduced to be Rs. 13,000/ per month. The respondent herein is free to claim interim maintenance for her minor daughter before learned Metropolitan Magistrate and if, said claim is made, same shall be decided by the learned Metropolitan Magistrate as per law. Appeal is partly allowed accordingly.
Announced in the open Court on 26.10.2018 (SANJEEV KUMARII) Additional Sessions Judge05 South East District, Saket Courts, New Delhi CA No. 467/2017 Sumit Das v. Shivani Das Page No.7 of 7