Delhi District Court
Gurvinder Singh Narula vs Jasleen Kaur on 10 January, 2019
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
CA No. 329/17
Gurvinder Singh Narula
S/o. Sh. Surjit Singh Narula
R/o. M004, Prateek Wisteria
Sector77, Noida. .... Appellant/Husband.
Versus
1. Jasleen Kaur
W/o. Mr. Gurvinder Singh Narula .... Respondent no. 1/Wife.
2. Master Prabhmeet Singh
S/o. Mr. Gurvinder Singh Narula .... Respondent no. 2.
Both residents of :
E25, Kalkaji
New Delhi.
Date of Institution : 21.08.2017
Date of Arguments : 11.12.2018
Date of Judgment : 10.01.2019
JUDGMENT
1. This appeal is directed against order dated 24.07.2017 passed by learned Metropolitan Magistrate02 (Mahila Court), South East District, CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
Saket Courts, whereunder application for respondents for interim relief under The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act") was disposed of and appellant was directed to pay a sum of Rs. 45,000/ per month to respondents towards maintenance from the date of filing of complaint till final disposal of complaint on merit. Other relief (s) were also granted to respondents but from the tone and tenor of arguments addressed by Sh. Ravi Bassi, learned counsel for appellant, as well as from averments made in the grounds of appeal, it is clear that appellant is mainly aggrieved by the directions of learned Metropolitan Magistrate to pay a sum of Rs.45,000/ to respondents as maintenance. For the sake of convenience, appellant will be referred to as 'husband while respondent no. 1 will be referred to as 'wife' in this judgment.
2. Admitted facts of parties to the present litigation are that they got married on 18.04.2004 and one male child was born out of the said wedlock. Parties are living separately since 15.03.2016. Wife filed an application under Section 12 of the Act alongwith an application under Section 23 of the Act for interim maintenance.
3. It was contended by wife before the trial court that she is working as a teacher in a school at Noida; wife alongwith her minor son/respondent no.2 are sustaining themselves with immense hardship as wife has little source of income. Wife, thus, claimed maintenance for CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
herself as well as for her minor son. Wife claims herself to be M.Com and B.Ed. and she stated that she is working as teacher in City Public School in Noida having monthly salary of Rs. 30,000/ per month approximately. Wife further stated that she was living separately from husband due to his cruel behaviour and is presently residing at her parental home alongwith her minor child. Wife contended that she has little source of income and is dependent upon her old aged parents. Giving details about the husband, wife stated before the trial court that husband is professionally qualified and is working as software professional and earning an amount of Rs.1,37,000/ per month as salary besides receiving huge amount as interest and income from other sources and investments. Wife alleged that husband has failed to maintain respondents.
4. Husband, on the other hand, contended that wife is a well educated woman and has reasonable income for herself as well as for her minor child. Husband contended that wife gives private tuitions to children which she has concealed in her income affidavit. Husband stated that he has several liabilities like payment of home loan, car loan, etc, and hence, the amount which husband is receiving as salary is spent by him on his expenses and thus, he is not in a position to pay maintenance to respondents.
5. The trial court came to the prima facie conclusion that husband has committed the act of domestic violence against wife.
CA No. 329/17Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
Assessing the salary of husband as Rs. 1,37,000/ per month, besides incentives which are paid by the company at regular interval, the trial court directed the husband to pay a sum of Rs.45,000/ to respondents.
6. The impugned order is mainly assailed by the husband on the ground that income and expenditures of parties have not been correctly assessed by the trial court and thus, impugned order has been passed on the basis of conjecture and surmises. Submissions of Sh.Ravi Bassi, learned counsel for husband may be noted down as under :
(i) In the income affidavit of wife filed before the trial court, monthly income of wife is mentioned as Rs. 60,719/ per month, while the impugned order was passed taking monthly income of wife as Rs.30,000/ per month;
(ii) Wife has not placed on record her salary certificate and thus, concealed her actual income from the trial court;
(iii) Wife has given exorbitant figures of her monthly expenditures as she herself is a teacher and can teach her son in the house and hence, there is no need for spending money on tuitions of the son of parties;
(iv) Parties separated on 15.03.2016 while date of filing income affidavit by wife is 18.08.2016. Wife has not explained as to how she incurred expenses of Rs. 3,06,550/ in these five months as claimed in her income affidavit.
(v) Both husband as well as wife are under duty to maintain their son i.e. respondent no. 2;CA No. 329/17
Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
(vi) Total monthly expenses of husband as per his income affidavit are Rs.1,34,590/ which have not been considered by the trial court. It is not explained in the impugned order as to how wife is dependent on husband.
7. Sh. Ravi Bassi, learned counsel for husband, during the course of arguments relief upon following judgments :
(i) Vikas Kohli Vs. Abha Kohli - MANU/DE/2202/2016;
(ii) Shobhana Srivastava Vs. Manoj Menon - MANU/DE/2263 / 2016;
(iii) Rupali Gupta Vs. Rajat Gupta - MANU/DE/2384/2016;
(iv) Vijay Kumar Vs. Harsh Lata Agarwal - MANU/DE/2774/ 2008;
(v) Sanjay Bhardwaj Vs. The State & Anr - MANU/DE/2129/ 2010;
(vi) Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur -
MANU/SC/1177/2009;
(vii) Nisha Jain Vs. Amit Jain - MANU/DE/2256/2016;
(viii) Damanpreet Kaur Vs. Indermeet Juneja & Anr. MANU/DE/2693/2012;
(ix) Manish Jain Vs. Akanksha Jain - MANU/SC/0355/2017; and
(x) Jalendra Padhiary Vs. Pragati Chhotray decided by Hon'ble Supreme Court on 17.04.2018.CA No. 329/17
Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
8. Main arguments of Ms. Meenakshi Kalra, learned counsel for respondents, are noted down as under :
(i) As per income affidavit of wife and documents filed therewith, the net monthly income of wife is Rs.20,520/;
(ii) Wife in her income affidavit has shown her income from gift as Rs. 35,000/ per month. Thus, this income is the financial assistance which wife is receiving from her parents which cannot be included in her monthly income;
(iii) Husband has not adduced any evidence to show that wife gives tuitions;
(iv) Total expenditures shown by husband (Rs.1,34,540/ per month) in his income affidavit are exorbitant;
(v) Repayment of car loan by husband has been stopped as per averments of appeal;
(vi) PF contribution made by husband as per salary slip is part of his income.
9. Ms. Meenakshi Kalra, learned counsel for respondents, during the course of arguments relief upon following judgments :
(i) Chandrikaben Chhanalal Patel Vs. Rameshchandra Chandilal Patel 1986 (1) DMC Gujarat 232;
(ii) Dharmi Chandra Vs. Smt. Sobha Devi - AIR 1987 Raj 159, 1987 (1) WLN 637;
(iii) Radhikabai Vs. Sadhu Awatrai - AIR 1970 Madhya CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
Pradesh 14;
(iv) Savita Aggarwal Vs. R.C. Aggarwal 1991 (1) DMC 301 MP;
(v) Amit Kumar Vs. Navjot Dubey - MANU/PH/2583/ 2016;
(vi) Vinny Parmvir Parmar Vs. Parmvir Parmar - (2011) 13 SCC 112;
(vii) Shailja & Anr. Vs. Khobbanna - AIR 2017 SC 1174 Vol 104 Part 1240 and
(viii) Sukhjinder Singh Saini Vs. Harvinder Kaur - 2017 SCC Online Del 11621.
10. The fact that wife has to separate from her husband and is living with her parents alongwith his minor child is itself indicative of domestic violence against her. Hence, the trial court was justified in coming to the conclusion that prima facie case of domestic violence is revealed against husband.
11. As discussed above, one of the grievance of husband against impugned order is that impugned order is silent on the question as to how income of parties were assessed, submissions being that wife in her income affidavit has mentioned her monthly income as Rs. 60,719/ per month while in the impugned order, it is mentioned that monthly salary of wife is Rs. 30,000/ per month approximately. This is an instance of part reading of income affidavit. In para 4 of income affidavit, wife has given details of CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
her gross annual income as Rs. 3,55,200/ while her net income is mentioned as Rs. 2,80,200/ per annum i.e. Rs. 22,350/ per month. Under the heading "income from other sources" wife has mentioned that she is receiving gifts worth Rs.35,000/. After adding the value of these gifts to the monthly income of wife, her income comes out to Rs.57,000/ approximately per month. Besides, wife is also receiving interest and dividend on various investments. Ms. Meenakshi Kalra, learned counsel for wife, submitted that gifts which wife is receiving are in the form of financial assistance which the wife is receiving from her father and same cannot be strictly considered as part of her income. The Court finds substance in the submissions of learned counsel for wife. Gifts or financial assistance, as the case may be, which wife is receiving from her family or relatives cannot be termed as her income in the strict sense of the term as they can be stopped/withdrawn at any time.
12 In Radhikabai (supra), it was held and observed as under :
" It does happen that, even in the absence of independent income, the party manages to keep alive and even to contest in lawcourts on the help provided by relations or friends. But while considering whether any grant should be ordered, the goodwill or charity of relations and friends cannot be taken into account. What is to be examined is whether there is sufficient independent income by which is meant actual income and not merely possible or potential income."CA No. 329/17
Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
13. The next contention of husband was that wife has not placed on record her salary certificate and has concealed her actual salary. Wife explained that her office does not issue salary certificate/slip. However, wife has filed documents, viz. her income tax return and bank statements which give clear picture about her salary. Although, it is a settled law that income tax returns are not final words so far income of a person is concerned, however, besides, income tax returns, wife has also placed on record her bank statements which shows different sums ranging from Rs. 28,000/ to Rs.30,000/ being deposited in her account as salary. The Court sees no reason to doubt genuineness of these bank statements.
14. Husband has stated that wife has given exorbitant figures of monthly expenses incurred by wife on the minor child. Total expenditures on the education of child as per income affidavit of wife is Rs.2,61,700/ per annum and thus, average monthly expenses of minor child comes out to Rs.21,808/ which are normal expenditures and same cannot be termed as exorbitant.
15. On the other hand, husband has given his monthly expenditure as Rs. 1,34,590/ against his total monthly income of Rs. 1,37,841/. It is highly inconceivable that a person can survive with monthly savings of Rs.3,000/. Thus, figure of total expenditures given by husband i.e. Rs. 1,34,590/ is exorbitant and cannot be believed. Besides, husband has stated that he is paying Rs.10,934/ per month as installment for repayment CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
of car loan and Rs. 34,790/ per month as monthly installment for housing loan. In Bhushan Kumar Meen (supra) it was held that having considered reality of situation to the effect that the appellant is receiving a sum of Rs. 9,000/ in hand after deduction of various amounts, including the installments towards repayment of the loan, the amount as awarded by way of interim maintenance is on the high side.
16. In V. Dhandayuthapani Vs. Bhuvaneshwari decided on 22.09.2015, it was held in para 8 as under :
" The deductions that are made in the salary of revision petitioner is towards loan facility already availed by him. The deduction for the society loan is roughly about Rs.14,825/ and the deduction towards yet another loan is Rs. 12,981/. These deductions only go to show that the amount is already being enjoyed by the revision petitioner or it will be enjoyed in future. Compulsory deduction is very minimal. Therefore, the amount of maintenance as ordered by the Court below cannot be said to be excessive, especially having regard to the sky rocketing increase in prices."
Therefore, husband cannot claim any deduction from his monthly income on account of monthly payment of installments of loans.
17. Another contention of husband is that wife being a qualified teacher is earning additional income by way of giving tuitions. This assertion has not been supported by any evidence. There was no material CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
before learned Metropolitan Magistrate to suggest that wife is giving tuitions and is having any income therefrom. Hence, the contention of husband that wife is earning additional income by way of tuitions is liable be rejected.
18. The next point emphasized by Sh. Ravi Bassi, learned counsel for husband, was that both husband and wife have the responsibility to maintain the minor child and thus, husband alone cannot be called upon to pay for maintenance of child.
19. In Sukhjinder Singh Saini (supra), it was held that it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. It was further held that the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.
20. From the income affidavit of wife as well as documents viz. income tax returns and bank statements, the average net monthly income of wife can be assessed at Rs. 30,000/. Husband has annexed his salary slips from 01.04.2016 to 31.03.2017 alongwith the appeal. On the basis of these salary slips, average net salary of husband works out to Rs. 1,57,000/. Therefore, there is huge difference between monthly income of husband CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.
and monthly income of wife. Wife cannot be expected to maintain herself and her child, who is 13 years old, with a meager salary of Rs. 30,000/ per month approximately. In other words, having income, almost five times than the income of wife, husband cannot shy away from his social, moral and legal obligation to maintain the wife and their child.
21. In Vikas Kohli (supra) it was held that interim maintenance order should be a speaking and well reasoned order. In Vijay Kumar (supra) it was held that it is expected from the trial court to assess income of both parties while awarding maintenance. In Shobhana Srivastava (supra) it was held that a will qualified wife cannot be permitted to survive on the maintenance of be provided by husband.
22. In the present case, salary of wife is not sufficient for her maintenance as well as for the maintenance of child. It is a settled law that wife is entitled to same status of living which she had enjoyed had the parties not separated. It was so held in Amit Kumar (supra).
23. In 206 (2014) Delhi Law Times 709 (DB) - Delhi High Court Vikaas Ahluwalia Vs. Simran Ahluwalia, it was observed and held in para 15 as under :
" The Court, in considering an application for interim maintenance has to take into consideration the financial status of the parties, the earnings and the earning capacity of both the spouses. While CA No. 329/17 Gurvinder Singh Narula Vs. Jasleen Kaur & Anr. granting maintenance, the spouse claiming maintenance should as far as possible be kept in the same status which he or she enjoyed while being in the matrimonial life with the other spouse. Also the family status is another aspect to be considered."
24. Considering the net monthly income of husband (Rs.1,57,000/ approximately), net monthly income of wife (Rs.30,000/ approximately) and the fact that wife is living with her parents alongwith the minor child, it is concluded that a sum of Rs. 45,000/ per month as maintenance awarded to wife and her child is just, reasonable and fair. The Court sees no reason to interfere with the impugned judgment. Accordingly, the appeal is dismissed.
Trial court record be sent back alongwith copy of this judgment.
Appeal file be consigned to Record Room.
Announced in open Court
on 10.01.2019 (Sandeep Yadav)
Addl. Sessions Judge02 (South East)
Saket Courts/New Delhi.
CA No. 329/17
Gurvinder Singh Narula Vs. Jasleen Kaur & Anr.