Delhi District Court
Gaurav Kashyap vs Neha Dhama on 22 February, 2025
1
IN THE COURT OF PUNEET PAHWA, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS), NORTH EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. 154/2024
CNR No. DLNE01-002603-2024
GAURAV KASHYAP
S/o Sh. Vinod Kashyap
R/o 39 B, First Floor, B-12,
Dhawal Giri, Sector-34,
Noida, U.P. - 201301
.......... Appellant
Versus
NEHA DHAMA
W/o Sh. Gaurav Kashyap
D/o Sh. Jagat Singh Dhama
R/o F-315/C,
Gali No. 6, Ganga Vihar,
Delhi-110094
.........Respondent
Date of Institution of Appeal : 04.09.2024
Date of Completion of Arguments : 07.01.2025
Date of Judgment : 22.02.2025
JUDGMENT
1. This appeal is directed against the impugned order dated 05.08.2024 passed by the court of Ms. Arushi Parwal, Learned Judicial Magistrate First Class (Mahila Court), North- East District, Karkardooma Courts, Delhi in CT Case No. 838/2022 U/s. 29 of the Protection of Women from Domestic Violence Act, 2025.
Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.02.22 13:12:07 +0530 2
2. Briefly stated, the respondent (applicant therein) had filed the petition u/s. 12 of the Protection of Women from the Domestic Violence Act in the Ld. Trial Court against Gaurav Kashyap (husband), Vinod Kashyap (father-in-law), Smt. Pushpa (mother-in-law), Devender Kashyap (Chachia Sasur) and Smt. Savita Devi (Chachia Saas) stating therein that she married with Gaurav Kashyap (appellant herein) on 12.12.2018, according to Hindu rites and customs and in the said marriage, the parents of the applicant therein had spent huge amount of Rs.28 lakhs and after marriage, her husband and other in-laws were not happy with the said marriage, therefore, they used to harass, torture and humiliate her on the pretext of bringing less dowry and they also used to beat her without caring about her ill-health.
3. It was also alleged that due to the harassment and cruelties done by her husband and in-laws, the applicant therein had to resign from her job, which caused her financial hardships in her daily life and she became dependent upon the mercy of her parents. Therefore, the applicant therein had filed the said petition u/s. 12 of the Protection of Women from the Domestic Violence Act against the appellant herein and his family members and prayed for passing protection orders u/s. 18 of , residence orders u/s. 19, to pay monetary relief u/s. 20, for passing orders u/s. 21, to direct the respondent to grant compensation or damages u/s. 22 of the Protection of Women from the Domestic Violence Act.
Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:12:17 +0530 3
4. The notice of the petition was issued to the respondent no. 1 to 3 therein and on completion of service of notices, the respondent no. 1 to 3 therein had appeared in Ld. Trial Court with Ld. Counsel and filed their reply.
5. Vide order dated 05.08.2024, considering the medical condition of the applicant therein, ad-interim maintenance to the tune of Rs.10,000/- per month was granted in favour of the applicant therein which shall be payable by respondent no. 1 (appellant herein) on or before 10 th of each month.
6. Feeling aggrieved with the said order dated 05.08.2024, the appellant herein has filed the present appeal.
7. I have heard the Ld. Counsel for the appellant and Ld. Counsel for the respondent and perused the record of the Ld. Trial Court.
8. Sh. Naveen Kumar, Ld. Counsel for the appellant submitted that the Ld. Trial Court imposed an ad-interim maintenance of Rs.10,000/- per month in favour of the respondent without considering the facts and documents on record and the Ld. Trial Court did not close the right of the respondent to file the replication in response to written statement/ reply of the appellant, as per Rule 5 of Chapter VII of DHC Rules and submitted that the Ld. Trial Court also did not close the right of the respondent to file her Assets and Liability Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:12:28 +0530 4 Affidavit / Income Affidavit alongwith the bank statement for duration 2019 to 2022, as per the judgment of Rajnesh Vs. Neha & Ors. passed by the Hon'ble Supreme Court of India in SLP (Crl.) No. 9503 of 2018.
9. Ld. Counsel for the appellant further submitted that the impugned order dated 05.08.2024 passed by the Ld. Trial Court is against the law, as, the Hon'ble Court has failed to appreciate the point of interpretation of law in their proper perspectives and the said order has been passed without referring to the educational qualification and employment of the respondent and same is illegal and prayed that the impugned order dated 05.08.2024 passed by the Ld. Trial Court may be set aside with directions to the Ld. Trial Court to close the right of the respondent to file the replication in response to the written statement/reply filed by the appellant.
10. Ld. Counsel for the appellant relied upon the judgments in case, Ram Sarup Lugani v. Nirmal Lugani, FAO (OS) 47/2020, decided on 19.10.2020; Mamta Jaiswal v. Rajesh Jaiswal, II (2000) DMC 170; Govind Singh v. Smt. Vidya, Civil Misc. Appeal No. 140 of 1999 decided on 21.04.1999 by Hon'ble Rajasthan High Court; Kavita Prasad v. Ram Ashray Prasad, CM (M) 1153/2008 dated 01.10.2008 by Hon'ble Delhi High Court; Niharika Ghosh @ Niharika Kundu v. Shankar Ghosh, MAT. APP. (F.C.) 248/2019 & CM APPL 20720/2022;
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Shabbir Badri vs. Shabnam Badri, CRA 106/2013 (1) dated 11.03.2013; Sutapa Banerjee v. State of Jharkhand & Anr., Crl. Rev. No. 982 of 2010 dated 12.04.2012; Rameshwari Devi & Ors. v. Nirmala Devi & Ors., dated 04.07.2011 and Dalip Singh v. State of U.P. & Ors., Civil Appeal No. 5239/2002 dated 03.12.2009.
11. On the other hand, Sh. Muzammil Hasan, Ld. Counsel for the respondent submitted that the Ld. Trial Court passed the impugned order dated 05.08.2024, after considering all the facts and circumstances in a very judicious manner and submitted that the appeal filed by the appellant is false, frivolous and baseless and prayed for dismissing the present appeal filed by the appellant.
12. I have given thoughtful consideration to the submissions made by Ld. Counsel for the appellant and Ld. Counsel for the respondent.
13. The present appeal has been filed against the order dated 05.08.2024, vide which, the Ld. Trial Court granted ad- interim maintenance to the tune of Rs.10,000/- per month in favour of the respondent and the ad-interim maintenance was to be payable by appellant on or before 10th of each month.
14. The relevant portion of the order dated 05.08.2024 passed by the Ld. Trial Court is reproduced herein below:-
Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2025.02.22 13:13:03 +0530 6 "At this stage, Ld. Counsel for petitioner has pressed for ad interim maintenance for the petitioner. As per income affidavit of respondent no. 1, he is earning Rs. 47,676/- per month and has no dependents. Upon enquiry, petitioner submits that she was previously employed as nurse but is unable to work presently on account of 'pituitary microadenoma'. Per contra, Ld. Counsel for respondents submits that petitioner is hiding her present status of employment and is presently working as a Head Nurse. She is not entitled to any maintenance from respondent no. 1 on account of her own employment. No proof of present employment of petitioner has been filed on behalf of respondent no. 1. Considering the medical condition of petitioner, ad-interim maintenance to the tune of Rs. 10,000/- per month is granted in favour of the petitioner and shall be payable by respondent no. 1 on or before 10th of each month. The said maintenance shall be payable from month and year of filing of present petition i.e. August, 2022. Arrears from August, 2022 to July, 2024 be cleared within six months from today. Payment from August, 2024 onwards be regularly made as per aforementioned directions till further orders. Ad- interim maintenance payable shall be adjusted in interim maintenance, if any, granted in favour of the petitioner."
15. Therefore, bare perusal of the abovesaid order shows that the maintenance of Rs.10,000/- was granted to the respondent as an ad-interim maintenance that too, on the basis of monthly income of Rs.47,676/- as admitted by the appellant himself, after considering the medical condition of the respondent herein.
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16. It is well settled that the object of granting maintenance is to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The Hon'ble Apex Court in Chaturbhuj v. Sita Bai, IX (2007) SLT 592-I (2008) DMC 22 (SC)=IV (2007) CCR 408 (SC)=(2008) 2 SCC 316, has observed as under:
"6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70:
1978 SCC (Cri) 508: AIR 1978 SC 1807] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC 636: 2005 SCC (Cri) 787: (2005) 2 Supreme 503].
Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.02.22 13:13:59 +0530 8 In an illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi [(1975) 2 SCC 386: 1975 SCC (Cri) 563: AIR 1975 SC 83], it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC."
17. It is trite law that a husband cannot shirk his sacrosanct duty to financially support his wife. The Hon'ble Apex Court, in the case of Shamima Farooqui v. Shahid Khan, III (2015) DLT (CRL.) 371 (SC)=III (2015) SLT 703=(2015) 5 SCC 705, observed as under:
"14..... It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:14:08 +0530 9 children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the hold of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay. for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right."
18. The Hon'ble Apex Court, in the case of Anju Garg & Anr. v. Deepak Kumar III (2022) DMC 406 (SC)=VIII (2022) SLT 30=2022 SCC Online SC 1314, served as under:
"10.... The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:14:16 +0530 10 physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute....
x-x-x
13. Though it was sought to be submitted by the learned Counsel for the respondent, and by the respondent himself that he has no source of income as his party business has now been closed, the Court is neither impressed by nor is ready to accept such submissions. The respondent being an able-bodied, he is obliged to earn by legitimate means and maintain his wife and the minor child...."
19. The above observations were though made while deciding the issue of granting maintenance u/s.125 CrPC, but, the same very well applies in cases for grant of maintenance under the Domestic Violence Act also, as the object behind both the provisions is same i.e. to prevent vagrancy and to ensure decent standard of living for the deserted wife.
20. Ld. Counsel for the appellant has argued that the Ld. Trial Court has decided ad-interim maintenance without going through the record and without considering the fact that the respondent herself is well qualified and earning, so there is no need to grant any ad-interim maintenance to her. It has further been argued that the Ld. Trial Court did not close the right of the respondent to file replication in respect of the written submission /reply of the appeal and the Ld. Trial Court also did not close the right of the respondent to file her Assets and Liability Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:14:26 +0530 11 Affidavit/Income Affidavit alongwith last three years bank statement. It has been argued that the respondent had not furnished her bank statement of the period 2019-2020, 2020- 2021 & 2021-2022.
21. This court does not find any force in any of the arguments raised by the Ld. Counsel for the appellant and also does not find any illegality/infirmity in the order dated 05.08.2024 passed by the Ld. Trial Court. Admittedly, the order for grant of ad-interim maintenance of Rs.10,000/- was passed on the basis of admitted income of the appellant and also considering the medical condition of the respondent. The argument that the respondent herself is well qualified and is earning, is not sustainable at this stage, as no document to that effect was furnished by the appellant before the Ld. Trial Court. Otherwise also, if the respondent has furnished any false statement in her affidavit and if the appellant gets any document/ evidence to show that the respondent is earning, then he can move appropriate application before the Ld. Trial Court for modification of the order of granting maintenance. In the absence of any document showing that the respondent is earning, the appellant is duty bound to provide maintenance to the respondent, as held by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi in several cases that the husband being able-bodied is bound to financially support his wife. The argument that the Ld. Trial Court did not close the right of the Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:14:41 +0530 12 respondent to file her affidavit qua her assets /liabilities/income & the right to file replication is not sustainable, as the said affidavit is to be filed in compliance of the judgment of the Hon'ble Supreme Court of India in Rajnesh Vs. Neha dated 04.11.2020 in SLP (Crl.) No. 9503/2018 and since, the respondent is bound to file the same, her right cannot be closed. So far as filing of replication is concerned, to close the right of filing of replication shall be considered by the Ld. Trial Court as and when the same is filed by the respondent. Filing of the replication to the written submission is not mandatory and whether or not to accept the same shall be sole discretion of the Ld. Trial Court and the Ld. Trial Court shall decide the same as per law.
22. It has further been argued that the respondent has not filed her account statement for 3 years prior to the filing of the petition and hence not complied with the judgment of the Hon'ble Supreme Court of India in Rajnesh Vs. Neha (supra). I have gone through the affidavit of assets/income filed by the respondent and also the bank documents filed alongwith the affidavit. The respondent has filed photocopy of her bank account passbook for the period from 19.08.2019 to 02.10.2023 and also bank account statements for the years 2021, 2022 & 2023. Therefore, sufficient supporting documents have been filed alongwith the affidavit in compliance of the judgment of the Hon'ble Supreme Court of India. Otherwise also, the ad-interim Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.02.22 13:14:53 +0530 13 maintenance has been granted by the Ld. Trial Court on the basis of admitted income of the appellant.
23. Thus, it is incumbent on the appellant, who is an able-bodied man, to financially support the respondent. In such circumstances, in my opinion, the monthly maintenance of Rs. 10,000/- per month to the respondent is reasonable. The respondent is a woman having some medical issues and maintenance cannot be denied to her in absence of any material to show that she has sufficient income to maintain herself.
24. Therefore, this court does not find any merit in the present appeal and same being devoid of merit stands dismissed.
25. In view of the above discussion, the present appeal is accordingly disposed of. Record of Ld. Trial Court be sent back with attested copy of this order. Appeal file be consigned to Record Room, after due compliance.
Announced in the open court on 22nd day of February, 2025 Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2025.02.22 13:15:05 +0530 (PUNEET PAHWA) Special Judge (NDPS)Addl. Sessions Judge/ North East District/Karkardooma Courts/Delhi Criminal Appeal No. 154/2024 Gaurav Kashyap Vs. Neha Dhama