Delhi District Court
Shailesh Kumar vs Anupam on 5 February, 2015
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE
SOUTH EAST-03, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CASE ID No. 02406R0166962014
CA NO. 12/14
Shailesh Kumar
S/o Sh. Narender Singh
R/o Mandir Kothi, Kankey Road,
Jharkhand
.......................Appellant
Vs
Anupam
D/o Late Sh. N.N. Singh
R/o 302, Third Floor, Q-1/7, Sriniwaspuri Extension,
New Delhi-110065
.......................Respondent
DATE OF INSTITUTION OF APPEAL:08.07.2014 DATE OF RESERVING ORDER:05.02.2015 DATE OF PRONOUNCEMENT: 05.02.2015 This is an appeal u/s 29 of the Protection of Women from Domestic Violence Act 2005 assailing the impugned order dated 07.05.2014 passed by the Ld. MM, Mahila Court therein awarding interim maintenance in a sum of Rs. 6000/- per month to the child and Rs.4000/- per month to the respondent/wife in a petition u/s 12 of PWDV Act.
The brief facts necessary for the disposal of the present appeal are that the marriage between the parties was solemnized on CA NO. 12/14 Page No. 1 of 14 28.11.2005 at Lodhi Colony, New Delhi. The marriage was duly consummated and one male child was born from the wedlock on 28.05.2009. The complainant however raised allegations of cruelty and harassment for dowry against the husband and the in-laws and also allegations of Domestic Violence against the husband. On a petition being filed by her u/s 12 of PWDV Act, the Ld. MM passed the impugned order dated 07.05.2014 granting interim maintenance of Rs. 6000/- to the child and Rs. 4000/- per month to the complainant/wife. The main grounds raised by the appellant husband challenging the impugned order are briefed as under:-
1. The Ld. Trial Court has failed to appreciate that the appellant herein was presently jobless and having no source of income and was also suffering from mental Trauma and depression due to the humiliation and harassment caused by the respondent. The Trial court has also failed to consider that he was under depression and was already ousted from his company in Dehradun and not working for last two years. It is contended that the Trial Court has passed the order merely on the basis of assumptions.
2. That there was no document, material or evidence on Judicial record to show or prove that the appellant was earing Rs. 25,000/- to Rs. 30,000/- at present.
3. That the respondent herself was an educated and able bodied person and she can easily earn Rs.30,000/- to Rs.
40,000/- per month as she was earlier working as a teacher and also having a vast experience of job in Telecom Companies.
CA NO. 12/14 Page No. 2 of 144. The counsel for the appellant vehemently argued that the Ld. MM could not have passed any order u/s 12 of the PWDV Act bypassing the mandate of Section 12 of PWDV Act which requires consideration of Domestic Incident Report prior to passing any order u/s 12 of PWDV Act, in view of Law laid down by the Hon'ble High Court in :
1. Bhupender Singh Mehra Vs. State of Delhi 2010 (4) JCC 2939.
2. Ravi Dutta Vs. Kiran Dutta 2014(2) RLR 103
5. He further argued that the Ld. MM has exercised the jurisdiction without waiting for the Domestic Incident Report. It was incumbent upon the Ld. Magistrate to take into consideration the DIR before passing any order under the Act.
6. I have heard arguments at length on behalf of both the parties. The Ld. MM in her order dated 07.05.2014 observed as under:
Marriage is admitted between the parties, so is the paternity of child. Child is in custody of complainant for whom she has claimed maintenance through her. In view of the allegations in the complaint, prima facie it can be said that she has been treated with cruelty and she needs maintenance at least at this stage. Further, she is residing separately from her husband since 2010 and is not being paid any maintenance since then.
CA NO. 12/14 Page No. 3 of 14The husband is liable to maintain his wife and child in case they are not able to maintain themselves.
Coming now to the status of respondent husband.
Admittedly he is an Engineer and has done B. Tech, though he has stated that he has not worked for last two years but it is difficult to presume that he is not working with an Engineering degree, he can easily get job in any part of India. Further, before also, respondent has worked in different status. Considering his qualification, it can easily be presumed that he can easily earn Rs.
25,000/- Rs.30,000/- per month.
Accordingly, I hereby presume his income @ Rs. 25,000/- per month, if not more.
I hereby grant maintenance to the child of the parties @ Rs.6,000/- per month to the complainant @ Rs. 4,000/- per month. This maintenance is granted to the complainant keeping in view of fact that she is an able bodied person and can earn some amount herself, as well.
7. The first and foremost contention raised by the appellant challenging the impugned order is the non consideration of the DIR by the Ld. MM. In this regard he has referred to the observations made by Hon'ble High Court in Bhupender Singh Mehra Vs. State of Delhi 2010 (4) JCC 2939 wherein it CA NO. 12/14 Page No. 4 of 14 was observed by the Hon'ble High Court that:
It is apparent from the above provision of Domestic Violence Act that before passing order on application, the Magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of Ld. MM shows that before serving notice to the respondent, the Ld. MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act.
8. It was further observed that "it is apparent from the above provision of Domestic Violence Act' that before passing an order on application, the Magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider And The procedure adopted by Ld. MM of issuing notice to the respondent CA NO. 12/14 Page No. 5 of 14 without even considering domestic report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act.
9. The appellant has further referred to the findings given by the Hon'ble Delhi High Court in Ravi Dutta Vs. Kiran Dutta 2014(2) RLR 103 wherein it has been observed by the Hon'ble High Court that:
After having heard both the sides and on perusal of the impugned order, trial court order and the decisions cited, I find that Section 12 of PWDV Act mandates that before passing any order on such an application, a " Domestic Incident Report" has to be taken into consideration and in the instant case, when the impugned order was passed by trial court, Domestic Incident Report was still awaited. No doubt, Section 28 of the PWDV Act to lay down its own procedure for deciding applications under Section 12 or sub Section 2 of Section 23 of PWDV Act but the procedure so evolved has to be fair and reasonable. In any case, the Court trying cases under PWDV Act can not bypass a mandate of Section 12 of CA NO. 12/14 Page No. 6 of 14 PWDV Act which requires consideration of Domestic Incident Report prior to passing any order under Section 12 of PWDV Act.
10. On this point, I have heard arguments at length advanced on behalf of the appellant. At this juncture, I would like to refer the findings given by the Hon'ble High court of Delhi in Crl. M.C NO.3083/2011 & Crl.M.A 10914/2011 wherein Hon'ble High vide dealing with the same question of law took a contrary view to the findings given by the Hon'ble High Court in Bhupender Singh Mehra Vs. State of Delhi 2010 (4) JCC 2939 case and referred the issue i.e. "whether calling and considering the report of the Protection Officer is mandatory before issuing notice to the respondent in an application under Section 12 of PWDV Act" to be considered by the Division Bench.
11. Subsequently, vide judgment dated 17.05.2012, the Hon'ble Justice S. Ravinder Bhatt and Hon'ble Justice S.P. Garg passed order in the said reference Crl. M.C NO. 3083/2011 & Crl. M.A 10914/2011, Shambhu Prasad Singh Vs Manjri wherein the Hon'ble High Court of Delhi speaking through the Division Bench observed as under :-
The basic objective in enacting the Act is to secure various rights to a woman living in Matrimony or in a relationship akin to matrimony, or any domestic relationship. Domestic Violence, is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to CA NO. 12/14 Page No. 7 of 14 such domestic violence is given the right to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorce and maintenance etc (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The Act being a beneficial one, the Court should adopt a construction to its provisions which advances the parliamentary intention rather then confining it. If the latter course is adopted the result would be to defeat the object of law. As noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for more than one relief. The court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated by the respondent ( a term defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act.
12. It was further observed that "This court notices that Section 23 empowers the Magistrate to pass such ex- parte interim orders as he may deem just CA NO. 12/14 Page No. 8 of 14 and proper, based only on the affidavit of the aggrieved person. Now where does this provision express or imply by necessary intendment that the consideration of the DIR is obligatory. Since an ex-parte interim order may be granted immediately upon institution of the complaint, it is likely that the Protection officer's DIR may not be prepared by then.
Thus, the Magistrate is definitely
empowered to exercise this power, and
pass interim order (s) against the
concerned respondent. If this can be done without considering the DIR, then certainly notice to the respondent must also be allowed to be served without first considering the DIR".
" The Proviso to Section 12 obliges the court to, "before passing any order on such application take into consideration any domestic incident report received by him from the Protection Officer or the service provider." The plenitude of the jurisdiction conferred by Section 12 is in no way affected by the proviso: all that it mandates is that before any order is made on an application ( under Section 12) the Magistrate "shall" take into consideration "any" report made by the Protection Officer.
CA NO. 12/14 Page No. 9 of 14It is one thing to say that Parliamentary mandate to the court is to take into consideration, in every case, a protection officers' report as a precondition for exercise of jurisdiction as the petitioner contends and entirely another to say that if "any' such report is available, it shall be considered. This clear cut difference, in our opinion was lost sight of by the Single Judge in Bhupender Singh Mehra's case. If Parliament had indeed mandated that in every case the court was obliged to call for protection Officer's report, and thereafter proceed with the complaint, the structure of Section 12 would have been entirely different. Such intention would have been expressed in more definitive, or imperative terms. In this context, this court is also unpersuaded by the Petitioner's arguments that the Rule 6 and the Form appended to the Rules have to be read into Section 12 to discern the precondition urged. This court sees no need to do so"
it would result in artificially curtailing what is otherwise a wide power.
13. In view of the abovesaid the Hon'ble High Court concluded the question referred to it in negative and held that a Magistrate, when petitioned u/s 12(1) is not obliged to call for CA NO. 12/14 Page No. 10 of 14 and consider the DIR before issuing the notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso of the Section 12(1).
14. On perusal of the record, it also revealed that after the filing of the complaint on 13.10.2011 directions were issued for filing of the DIR, however, the same was not filed on record. It has been experienced that the Protection Officers despite directions were not able to file the DIRs for long periods for which many times excuses were raised that the Protection officers were not provided any protection during the inquiry. They were not having any office space to work, they were not given proper salary. For these reasons, the DIRs are not filed in the courts for long period. In these circumstances as held by the Hon'ble High Court, the basic objective of the beneficial legislation would fail in case the DIR is to be considered mandatory before passing any urgent order in favour of the victim.
15. The Hon'ble High Court has hence settled the law in this regard. The main contention raised by the appellant hence does not survive.
16. In regard to the other contentions, the Ld. MM has already observed that from the allegations in the complaint prima facie a case under Domestic Violence Act was made out. Admittedly, the appellant is a B.Tech, a graduate in Engineering. In the present appeal itself, he has stated that at CA NO. 12/14 Page No. 11 of 14 the time of marriage, he was working as an Engineer specialized in Disaster Management Programme with M/s R.M.S.I Pvt. Ltd. Noida. He further stated in para-5 of the appeal that he again joined another company i.e M/s Speck System in a comparatively lesser salary to the tune of Rs. 25000/- per month in 2008 being posted at Gwalior. Counsel for the respondent vehemently argued that presently also, the appellant was working as a contractor and earning handsomely. He further submitted that the plea raised in regard to the medical condition of the appellant is also a false one as the appellant was regularly appearing in the other cases inter- se parties.
17. Counsel for the respondent argued that appellant and his family members committed all possible mental and physical cruelties upon the respondent. He stated that the appellant was even arrested in the FIR registered against him and remained in Judicial custody for about 2 months. He also argued that the appellant himself filed on record his pay slip pertaining to the year 2008 & 2009 wherein his salary has been shown to be Rs. 28,000/- per month. The respondent further argued that the last drawn salary of her husband while he was working as an Engineer was Rs.40,000/- per month.
18. Admittedly, the respondent is residing separately from the appellant since 2010. She has no parents to support her. The child is in the custody of the respondent. The appellant himself has stated that he has been working as an engineer in various companies with his lowest salary as Rs. 25,000/- per CA NO. 12/14 Page No. 12 of 14 month in 2008. The documents produced in regard to medical condition of the appellant are insufficient to prove that he was not in a position to work anymore. Whether he was presently jobless or was working in some other company is to be proved by both the parties by adducing evidence at a subsequent stage. It is not disputed by the appellant/husband that the respondent presently was jobless having no source of income, she is unable to maintain herself and her child and has no movable or immovable property. The appellant however has not shown any other liability except to maintain his wife and his child who are unable to maintain themselves. The appellant/husband is an able bodied person, well educated, capable of working. In these circumstances, he is supposed to maintain his wife, who happens to be living separately from him for the reasons mentioned in the matrimonial dispute between them, simply because it is claimed that he is not working at his own will for last many years, is not sufficient to deprive his wife and child to claim maintenance for their survival. He himself has furnished a salary slip showing his salary to be Rs. 28,000/- before the Ld. MM in the year 2010. Ld. MM however without considering any nominal increase after 4 years has taken up his present income to be atleast Rs. 25,000/- and granted a maintenance of Rs. 10,000/- per month to both the wife and the child which in my considered view is very reasonable.
19. In view of the abovesaid, I do not find any illegality or irregularity in the impugned order passed by the Ld. MM. The appeal hence stands dismissed. The appellant is directed to clear the arrears within 3 months from the date of this Order and CA NO. 12/14 Page No. 13 of 14 further to pay the maintenance on 10th Day of every month. Trial Court record be sent back.
Appeal record be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (SUDESH KUMAR)
ON 05.02.2015 ASJ, S.E., SAKET COURTS
NEW DELHI
CA NO. 12/14 Page No. 14 of 14