Delhi District Court
Smt. Sunita Bali vs ) Sh. Ashok Kumar Arora on 5 August, 2020
IN THE COURT OF MS. SWARANA KANTA SHARMA
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
CA No. 14/20
Smt. Sunita Bali
W/o Sh. Ashok Kumar Arora
D/o Sh. Ramesh Chander Bali
R/o at present no permanent address ...Appellant
Versus
1) Sh. Ashok Kumar Arora
S/o late Sh. Satpal
R/o Khasra No. 30/17, Pole No.677,
NGLE, Nihar Vihar, Nangloi,
Delhi110041
And also at
Khasra No. 33/17, Pole No.677,
NGLE, Nihar Vihar, Nangloi,
Delhi110041
2) Smt. Raj Kumari
W/o late Sh. Satpal
R/o B2/D, 3rd Floor, Sarai Basti,
Sarai Rohilla, DDA Flats,
Delhi110035
3) Smt. Mamta Grover
W/o Sh. Manish Grover
R/o 3 & 4, B19/B, 1st Floor,
Sarai Basti, Sarai Rohilla,
Delhi110035
4) Sh. Manish Grover
S/o Sh. Shiv Dayal Grover
R/o 3 & 4, B19/B, 1st Floor,
Sarai Basti, Sarai Rohilla,
Delhi110035
CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 1 of 7
5) Smt. Neha Aroa
W/o Sh. Vikram Arora
R/o 5 & 6, B2/D, 3rd Floor,
Sarai Basti, Sarai Rohilla, DDA Flats,
Delhi110035
6) Sh. Vikram Arora
S/o late Sh. Satpal
R/o 5 & 6, B2/D, 3rd Floor,
Sarai Basti, Sarai Rohilla, DDA Flats,
Delhi110035
7) Smt. Rani Kalra
W/o Sh. Krishan Lal Kalra
R/o 6A, Cottage, West Patel Nagar,
New Delhi110008 ...Respondents
Date of institution : 25.01.2020
Date of reserving order : 29.07.2020
Date of pronouncement : 05.08.2020
Appearance through video conferencing:
Sh. Manmeet Singh Maini, learned Counsel for the appellant.
Sh. Vishal Kumar, learned Counsel for respondent no. 1.
JUDGMENT:
By this order, I shall dispose of the present appeal under Section 29 of Protection of Women from Domestic Violence Act (P.W.D.V. Act) filed by the appellant assailing the impugned order dated 09.01.2020 passed by Ms. Neha Mittal, Ld. MM01, North District, Rohini Courts, Delhi, in complaint case no. 1480/2018 in case titled as Sunita Bali v. Ashok Kumar & Ors. whereby the application for right of shelter of the appellant/complainant was disposed of and the respondent no.1/husband was directed to pay an additional sum of Rs.1000/ in addition to adinterim CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 2 of 7 maintenance of Rs.8000/ per month towards maintenance of the complainant and her child inclusive of rent, electricity charges, water charges, food, etc.
2. The complainant is aggrieved by the impugned order on the grounds that the amount awarded towards adinterim maintenance is meagre for the survival of the complainant and her three years old daughter. It is contended in the appeal by the appellant that enhancement of additional sum of Rs.1000/ in addition to adinterim maintenance of Rs.8000/ does not fulfill her requirement as the rate of rent for one room set is at least Rs.15000/ per month including water and electricity charges. The appellant wants to get her child admitted in some good convent school. Due to lack of proper shelter, her child developed some health issues and was got admitted in Bhagwati Hospital, Rohini. It is further contended by the appellant that she has no source of income except the maintenance and that too is not being received regularly. She has taken the shelter of Gurudwara and she is at the verge of starvation whereas the respondent/husband is enjoying a lavish lifestyle and is earning Rs.50,000/ per month. The respondent/husband is also getting a rental income from the property and he is also doing part time work. The respondent/husband is a Driver by profession and earning a handsome amount. It is also contended by the appellant that she had provided number of documents and evidence about the true facts before the Ld. Trial Court but the same have not been appreciated by the Ld. Trial Court.
3. The respondent no.1 has filed reply to the appeal wherein it is averred that marriage of the appellant and the respondent no.1 was CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 3 of 7 solemnized in simple manner in Arya Samaj Mandir. No dowry and gift articles were exchanged in the marriage. Respondent no.1 has been paying the maintenance to the appellant as per direction of the court regularly, however, he is not in a position to pay the interim maintenance to the appellant as he has no source of income at present. It is further averred that Ld. Trial Court had summoned the employer of respondent no.1 who had given statement on 15.07.2019 before Ld. Trial Court regarding removal of respondent no.1 from the job. He has already been debarred by his mother to interfere in her peaceful life. Respondent no.1 has filed an application under Section 25 of the Domestic Violence Act before Ld. Trial Court for modification of order of interim maintenance as he is not in a position to pay the same to the appellant. Appellant had left the company of respondent no.1 without his consent and she is willfully residing with her parents without any rhyme and reason. It is further averred that respondent no.1 has all acknowledgment of payment of maintenance which he has already paid to the appellant. Appellant had filed the application for shelter against her in laws instead of her husband since she knew the fact that her husband is residing separately from his parents.
4. I have heard arguments on the appeal on behalf of the parties and have gone through the record. I have also gone through the trial court record.
5. Ld. Counsel for the parties have reiterated the averments made in the appeal and reply to the appeal during the course of arguments.
CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 4 of 76. After hearing arguments on behalf of the appellant and after having gone through the record, I am of the opinion that vide order dated 10.05.2019, while considering the fact that respondent no.1/husband who is driver by profession and also the fact of minimum wages applicable in Delhi, Ld. Trial Court had directed respondent no.1 to pay adinterim maintenance of Rs.8000/ per month to the petitioner/appellant as well as child of the petitioner till the interim maintenance is not decided. Vide impugned order dated 09.01.2020, while considering the fact that respondent no.1/husband is not working, Ld. Trial Court has decided the application of the complainant/appellant for right of shelter and has directed respondent no.1 to pay an additional sum of Rs.1000/ in addition to Rs.8000/ to the complainant/appellant towards maintenance of the complainant and her child which includes rent, electricity charges, water charges, food, etc.
7. I am guided by the judgment of Hon'ble High Court of Delhi passed in Manish Divedi v. Smt Jyotsana Crl. Rev. P. 951/2017 on 10.10.2019, wherein the Court has observed as under: "13. The Trial Court has only assessed adinterim maintenance. Adinterim maintenance is only tentative and subject to fixation of interim or final maintenance. At this stage the trial court has to only form a prima facie opinion. The Trial Court has prima facie looked at the status of the parties...."
8. I have considered the submissions and the case law. In the present case, a perusal of the trial court record reveals that the order for CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 5 of 7 grant of adinterim maintenance has been passed since the respondent no.1/husband had failed to file his income affidavit. As per mediation settlement dated 30.11.2017 arrived at between the parties, the respondent/husband had agreed to pay a sum of Rs.16000/ p.m. towards maintenance. As per settled law, a husband cannot take a plea that he is not earning and his capacity to earn is to be taken into consideration for providing sustenance to a wife who is unable to maintain herself. Therefore, without leading evidence by both the sides, at this stage, where prima facie view is to be taken, the Ld. Judge has committed no error while deciding the application for right of shelter of the appellant/complainant and the respondent no.1/husband was rightly directed to pay an additional sum of Rs.1000/ in addition to adinterim maintenance of Rs.8000/ per month towards maintenance of the complainant and her child inclusive of rent, electricity charges, water charges, food, etc. on the basis of the facts and circumstances placed before her.
9. Considering the overall facts and circumstances of the case and keeping in mind the fact that the adinterim relief is granted for the duration between filing of the application and passing an order on the application and also keeping in view of the fact that no proof of employment of husband could come on record, I find no infirmity in the impugned order dated 09.01.2020 of the Ld. Trial Court. The appeal is accordingly dismissed. However, the Ld. Trial Court is directed to decide the application for grant of interim maintenance within two months and delaying tactics by the respondents herein be dealt with as per law.
10. Nothing expressed herein shall tantamount to any expression CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 6 of 7 on the merits of the case and the Ld. Judge will hear the matter as per law without being guided by any observations made in this order.
11. During the pendency of the appeal before this court, two applications i.e. application under Section 10 & 12 of the Contempt of Courts Act and application u/s.340 Cr.P.C. were moved by the appellant in the present appeal. Appellant has prayed in the contempt application that contempt proceeding against the respondents be initiated for non compliance of any of the court orders. Similar prayer has been made by the appellant in the application u/s.340 Cr.P.C. Though this court had directed during pendency of the appeal that the respondent no.1 will clear the arrears of maintenance before the concerned court, however, in case he has defaulted in payment of arrears of maintenance or monthly maintenance itself, the proper remedy before the appellant is to approach the trial court.
12. TCR be sent back alongwith copy of this order. The appeal file be consigned to the record room.
Announced through video conferencing today i.e. 5th August, 2020 (Swarana Kanta Sharma) District & Sessions Judge (North) Rohini Courts, Delhi (sb) CA No. 14/20 Sunita Bali v. Ashok Kumar Arora & Ors. Page 7 of 7