Delhi District Court
Asha vs Santosh Kumar on 27 April, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Criminal Appeal No. 85/2017
CNR NO. DLT010025002017
Asha ..........appellant
d/o Sh. Jagdish Chander Thagela
w/o Sh. Santosh Kumar
r/o 28/872, DDA Flats, Pushp Enclave
New Delhi 110080
versus
Santosh Kumar ..........respondent
s/o Sh. Ramji Lal r/o C793, Sangam Vihar PS Sangam Vihar, New Delhi 110080 Date of Institution : 30th March 2017 Date of arguments : 24th April 2017 Date of order : 27th April 2017 J U D G M E N T
1. This Criminal Appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred as Act) has been preferred against the order aged 02.02.2017 passed by Learned Metropolitan Magistrate, New Delhi whereby decline to grant interim maintenance to the appellant. The grant of interim maintenance to the Asha vs Santosh page no. 1 of 10 CA No. 85/2017 appellant/complainantAsha is declined while observing that complainant is well educated woman and has been unable to explain as how she is incapable to maintain herself and it is to be kept in mind that it is the responsibility of both parents to maintain their children and secondly, as per the order dated 16.12.2016 passed by the Court of Learned Principal Judge, Family Courts, Saket Court, New Delhi the interim maintenance application has been disposed off.
2. Aggrieved with the said order, appellant preferred the present appeal with the submissions that Learned trial Court failed to appreciate the facts that the appellant is under pressure and has daily challenge to take care of minor children and elder child is 100% handicapped, who cannot even perform his daily liabilities of feeding, bathing, call of nature and cannot lead a normal life and surviving on regular medical treatment. The Family Court granted an interim maintenance of Rs. 5,000/ per month which was insufficient amount and only hope was remaining before the Court of Learned Metropolitan Magistrate to look into the grievances of appellant and to direct the respondent to provide some additional amount which is immediately required to lead normal life because she cannot work for gain as having responsibility of two minor children, out of them one child is 100% disabled and requires daily medical treatment, physiotherapy, healthy diet and Asha vs Santosh page no. 2 of 10 CA No. 85/2017 medicines. The appellant has to bring her elder son, who is physically handicapped, to the physiotherapy centre for the treatment and spend Rs. 200/ daily for to and fro charges on auto which costs around Rs. 6,000/ per month and has been paying the said costs only by her old pensioner father. It is also a hard fact that the appellant requires money for the daily needs, medical expenses, kitchen expenses, education of younger child and other expenses of younger child like healthy diet, dress, books, tuition fee, transportation and other expenses which are urgently required for leading a normal life. Appellant is fully dependent on his retired father. Respondent is husband of appellant and father of two children who never provided households, clothes, necessary belongings, toys etc. to the appellant and two children and Rs. 5,000/ is a very meagre amount. It is very difficulty for the appellant and her two children to fulfil the daily needs of the children. Respondent is the youngest son of his parents and his father is a junk dealer and earns handsome amount and his elder brothers are also well settled in their business. Therefore, a prayer to direct the respondent to pay atleast Rs. 1,50,000/ as interim maintenance and for reimbursement of expenses from time to time.
3. After assigning of this present appeal, notice was issued to respondent. Learned counsel for respondent without filing any reply has Asha vs Santosh page no. 3 of 10 CA No. 85/2017 straightway argued that the Family Court has already granted Rs. 5,000/ per month as interim maintenance for the minor children. The appellant is a graduate can bear her expenses by getting an employment. The appellant has the responsibility of two minor sons and cannot move to the office while leaving the children alone at home and respondent is having a good financial background, working as Accounts Officer and as per the Notification dated 03.03.2017, No. F.Addl.LC/Lab/MW/2016/4859, the Minimum Wages for a graduate and above is Rs. 17,604/ per month i.e. Rs. 677/ per day. The respondent has not declared his actual income. During the course of arguments, it was also revealed that respondent was initially earning handsome salary but lateron, after involvement in criminal case, he was removed from the previous employment, therefore, now he is getting around Rs. 10,000/ per month from the fresh employment.
4. Learned counsel for appellant argued that respondent had made statement before the Family Court 09.12.2015 that he is ready to bear medical/physiotherapy expenses of the child subject to providing the genuine bills.
5. Respondent relied upon Judgment of Smt. Mamta Jaiswal vs Rajesh Jaiswal 2000 (3) MPLJ 100 wherein it has been observed that "well Asha vs Santosh page no. 4 of 10 CA No. 85/2017 qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The appellant cannot harass the husband on account of maintenance, though she is capable of earning." In the present case, the appellant is a graduate in NTT and experience of working with various companies.
6. U/s 12 sub Section (2) of PWDV Act defines as under:
The relief sought for under subsection (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.
6.1 Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in passing of the order by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) , or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
Asha vs Santosh page no. 5 of 10 CA No. 85/2017
7. In the case of Neetu Singh vs Sunil Singh AIR 2008 Chh 1, it was held that the family court is not competent to entertain application filed under section 12 of Domestic Violence Act 2005.
8. Therefore, the observation made by the Family Court with respect to interim maintenance is not binding on the Magistrate Court u/s 12 of DV Act. The Court can have liberty to make its own assessment the under facts and circumstances of each case. In the instant case, one of the minor child of the parties is 100% physically challenged. The other one is also a minor and the appellant has to take care of both the kids, apart from herself. If the appellant will go to work place for employment then the question arise that who will take care of the minor kids, if the appellant will take the assistance of outside source then they will charge a handsome amount towards the taking care of both the minor kids. To bring the kid for physiotherapy centre will also spend travel expenses.
9. The Appellate Court cannot reassess the evidence at large and come to a fresh opinion as to the innocence or guilt of the accused, so as to interfere with a concurrent findings of fact by the Courts below. But even in cases of concurrent finding, the Court may interfere Asha vs Santosh page no. 6 of 10 CA No. 85/2017
(i) Where there has been in the trial, a violation of the principles of natural justice;
(ii) Where the conclusions reached by the Courts below are to patently opposed to the wellestablished principles of judicial approach as to amount to a miscarriage of justice.
(iii) Where the Courts have committed an error of law or of the forms of legal process or procedure by which justice itself has failed;
(iv) Where there has been an improper reception or rejection of evidence which, if discarded or received, would leave the conviction unsupportable;
(v) Where there has been a misreading of vital evidence or the Court omits to notice very important points in the accused's favour which would swing the balance to the other way;
(vi) When there are two versions before the Court, that version which is supported by objective evidence should be preferred, unless properly explained by the other side. At any rate, in such a case, if the defence version is supported by objective evidence, the accused should be entitled to benefit of doubt.
10. In the case of Kripal Singh vs State of UP AIR 1965 SC 712 where there has been in the trial, a violation of the principles of natural justice Asha vs Santosh page no. 7 of 10 CA No. 85/2017 if the order is perverse or inadequate and had resulted in the miscarriage of justice, the Appellate Court may interfere and pass the appropriate order instead of remanding the case for reconsideration.
11. The monetary relief granted while disposing of the application under subsection (1) of Section 12 of the Act, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited,
(a) the loss of earnings;
(b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure 1973 (2 of 1974) or any other law for the time being in force.
12. The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
Asha vs Santosh page no. 8 of 10 CA No. 85/2017
13. The Court has power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
14. The respondent is a graduate and working as Accounts Officer. He has already having the experience and having a good salary with the previous employment. Though it seems that he has concealed his actual income, which is contrary to the Minimum Wages Act. For the person like respondent , whose earning must be Rs. 17,000/ plus per month as per the recent Minimum Wages Notification. Appellant is to take care the two minor children and one of them is 100% physically challenge, which require an additional attention and mother is the best person to take care of the minor children. If she got an employment in such a situation, nobody will take care of minor children. Therefore, the amount of Rs. 5,000/ per month payable by the respondent to the appellant to meet the additional expenses.
15. In view of aforesaid discussions and the judgments cited, it will be appropriate that the appellant be granted interim maintenance to the sum of Rs. 5,000/ per month for her personal expenses, in addition to the interim maintenance already passed by the trial court for the minor children, which seems to be just, fair and sufficient to meet the end of justice. With these observations and directions, appeal stands disposed of.
Asha vs Santosh page no. 9 of 10 CA No. 85/2017
16. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for compliance.
17. Appeal file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Dr. Satinder Kumar Gautam) open Court on Special Judge (NDPS)/ASJ 27th April 2017) South District: Saket Asha vs Santosh page no. 10 of 10 CA No. 85/2017