Delhi District Court
Sh Ravi Kumar vs State Of Nct Delhi on 3 March, 2015
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IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
Crl. A NO. 16/2014
Sh Ravi Kumar
s/o Sh Trilok Chand
r/o 16/406 E, Padam Singh Road
Bapa Nagar, Karol Bagh, New Delhi ........APPELLANT
versus
1. State of NCT Delhi
Through Chief Secretary
I.P. Estate, New Delhi.
2. Smt Madhu
D/o Sh Sagar Chand
r/o H. No. 15/553H, Bapa Nagar
Hardhyan Singh Road
New Delhi5.
.......RESPONDENT
DATE OF INSTITUTION :02.09.2014
DATE OF JUDGMENT :03.03.2015
J U D G M E N T
1. The present criminal appeal u/s 29 of D V Act has been filed by the present appellant for setting aside/modification of the order dated 31.07.2014 passed by Ld MM, Central, Delhi Cr. A NO. 16/14 Page 1 of 6 pages 2 whereby the appellant has been directed to pay monthly maintenance of Rs.10,000/ as interim maintenance from the date of filing of the application along with Rs.3,000/ per month for the rent of the house of complainant w.e.f. 29.10.2013 ie the date of filing of the petition.
2. Brief facts leading to the present appeal are that marriage of the appellant with respondent no 2 had taken place on 05.04.2009. Respondent no. 2 has filed an application u/s 12 of D V Act, in which vide order dated 31.07.2014 the appellant has been directed to pay monthly maintenance of Rs.10,000/ as interim maintenance from the date of filing of the application along with Rs.3,000/ per month for the rent of the house to complainant w.e.f. 29.10.2013 ie the date of filing of the petition.
3. Being aggrieved with the order of Ld Trial Court, appellant has filed the present appeal on the following grounds:
a) That Ld Trial Court has not taken into consideration whether any domestic violence has actually taken place or not;
b) That Ld Trial Court has not taken into consideration the fact that respondent no 2 in her affidavit has stated that she has been living in her parental home and is not paying rent.
c) That Ld Trial Court has failed to appreciate that the appellant is employed with Department of Revenue and Central Excise as Tax Assistant in group C and as per form 16 for the Cr. A NO. 16/14 Page 2 of 6 pages 3 assessment year 20132014 his gross income is Rs.2,36,586/ ie monthly income of Rs.19,715/ and out of this amount, appellant has been directed to pay Rs.13,000/ to the respondent no. 2.
4. With these and similar grounds, it is prayed that the order of Ld. Trial Court dt 31.07.2014 passed by Ld Trial Court be set aside .
5. I have heard arguments from Sh C. B. Singh, Ld counsel for the appellant, Sh. Subhash Chauhan, Ld. APP for the state/Respondent No. 1 as well as from Sh G. S. Soni Ld counsel for the respondent no. 2.
6. I have considered the arguments advanced by Ld counsel for parties and Ld Additional P.P and gone through the trial court record.
7. Present appeal has been preferred by the appellant against the order dated 31.07.2014 passed by Ld Trial Court whereby maintenance of Rs.10,000/ has been granted to respondent/wife along with rent of Rs.3,000/ per month. The appellant has challenged the impugned order on two grounds; firstly that respondent/wife had willfully deserted the husband/appellant; secondly that appellant is not having resources to pay monthly maintenance of Rs.10,000/ plus Rs.
3,000/ ie Rs.13,000/ per month. On the other hand
Cr. A NO. 16/14 Page 3 of 6 pages
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respondent/wife has contended that it is husband/appellant, who had physically and mentally harassed her due to non fulfillment of demand of dowry and had thrown her out of the matrimonial home. Therefore, appellant is liable to make payment of maintenance to the respondent/wife.
8. I have considered the arguments advanced by Ld counsel for the parties. I have also perused the material available on record. After considering the impugned order passed by Ld Trial Court, I am of the opinion that before passing the order for disposal of interim maintenance application, Ld Trial Court had not considered the directions as passed by Hon'ble High Court in judgment Puneet Kaur vs Inderjit Singh Sawhney 183 (2011) DLT 403. As per this judgment, it is the duty of Ld Trial Court to direct both the parties to file their assets and liability in the form of affidavits and only thereafter the application for maintenance should be decided by Ld Trial Court.
9. As regards the entitlement of respondent/wife to maintenance and the allegations as to who is at fault and due to which reason, parties are living separately, I am of opinion that same has to be decided only after evidence is led by parties. As it is alleged by respondent/wife that she is living separately from Appellant/husband, as she has been thrown out of the matrimonial home, hence prima facie, she is entitled to be Cr. A NO. 16/14 Page 4 of 6 pages 5 maintained by appellant.
10. In the present case, admittedly appellant/husband is working as Senior Tax Assistant in the Department of Service Tax and Central Excise. Though it is alleged by appellant/husband that respondent/wife is also technically qualified but it is admitted that respondent/wife is not gainfully employed and is not earning any livelihood. Hence as per the facts available on record, total income of the husband/appellant is Rs.25,325/ per month, is the total family income, available to parties.
11. Now coming to the quantum of maintenance in case Annurita Vohra vs Sandeep Vohra reported in 110 (2004) DLT 546 - I (2004) DMC 568 Hon'ble High Court has laid down the following principles of law for ascertaining the quantum of maintenance:
"In other words the court must first arrived at the net disposable income of the husband or the dominant spouse. If the other spouse is also working these earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirement of the family members.
It is further held by Hon'ble High Court of Delhi in this case that : Cr. A NO. 16/14 Page 5 of 6 pages 6 In my view, a satisfactory approach would be to divide the Family Resource cake in two position to the husband since he has to incur extra expenses in the course of making his earning, and one share each to other members."
12. In view of above judgment, considering the income of petitioner, I consider it justify that earning cake of petitioner is divided into three parts ie two parts be given to appellant as he has to incur extra expenses in the course of earning his income and one part for the wife. In these circumstances, I consider it appropriate to award a sum of Rs.8,000/ per month as maintenance to the respondent/wife from the date of filing of the appeal till she is legally entitled to recover the same.
13. In view of my above discussion, the impugned order of Ld Trial Court is modified. Appeal as filed by the appellant is allowed.
14. Trial court record be sent back with the copy of the order.
15. File of appeal be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 03.03. 2015.
( SHAIL JAIN )
ADDL. SESSIONS JUDGE (CENTRAL)
DELHI
Cr. A NO. 16/14 Page 6 of 6 pages