Delhi District Court
Kapil vs Komal Devi on 21 March, 2017
1
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Crl. (A) No. 3/2/2017
U.I.D. NO. 54593/2016
P.S. Punjabi Bagh
Kapil,
S/o Late Sh. Babu Lal,
R/o C/o Neelam Malhotra,
House no. 786 B/3,
Quilla Mohalla,
Rohtak, Haryana.
......... Appellant
Versus
1. Komal Devi
D/o Late Sh. Dalip Singh,
R/o House no. WZ55,
Village Todapur,
New Delhi110012
2. State
Through its Secretary,
Govt. of NCT of Delhi.
....... Respondents
J U D G M E N T 21.03.2017
1. The appellant has filed the present appeal under Section UID No.54593/2016 Kapil Vs Komal Devi & Another 1of 8 2 29 of Protection of Women from Domestic Violence Act 2005(hereinafter called 'The Act') against the impugned order dated 04.10.2016, passed by the court of Ms. Shefali Sharma, Ld. Metropolitan Magistrate (Mahila Court)01, West, Tis Hazari Courts, Delhi for grant of interim maintenance and residence order.
2. The respondent no.1 filed a petition under Section 12 of The Act against the appellant. The Ld. Trial Court vide order dated 04.10.2016 has passed the order on the interim application moved under Section 23 of The Act along with the petition under Section 12 of The Act. The operative portion of the said order is reproduced as under: "In view of the principal laid down in the above cited observation and considering the present facts and circumstance of the case, I deem it appropriate to direct the respondent no. 1 to pay monthly sum of Rs.5,000/ per month (Rs.3000/ per month to the petition and Rs.2,000/ per month to the child) to the petition up to 10th of each English Calendar month from the date of filing of the application till further orders. The respondent no. 1 is further directed to clear the arrears of maintenance within 4 months UID No.54593/2016 Kapil Vs Komal Devi & Another 2of 8 3 from the date of this order. The amount paid or payable by the respondent no. 1 to the petitioner either in this case or in any other proceedings shall be adjusted accordingly.
As regard the residence order, it is not disputed that the house bearing no. F293, Madipur, New Delhi, is the matrimonial house/share household of the petitioner.
Accordingly, the respondent no. 1 is directed to provide the sufficient accommodation to the petition and her minor daughter in the share household as mentioned above separately and all the respondents are restrained from any committing any act of domestic violence against the petitioner and her minor child.
It is clarified that nothing stated herein shall tantamount to an expression of opinion on the merits of the case."
3. The appellant being aggrieved by the said order has filed the present appeal. In this appeal, it is stated that the impugned order is against the facts and law. That the impugned order is against the law declared by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi. That the impugned order is passed in a mechanical manner. That the Ld. Metropolitan Magistrate has failed to appreciate the salary certificate filed by the appellant wherein it has been mentioned that he is earning an amount of Rs.8,000/ per month. UID No.54593/2016 Kapil Vs Komal Devi & Another 3of 8 4 That the Ld. Trial Court has arbitrarily assumed the salary @ Rs.10,000/ per month without any basis.
4. It is further stated that the Ld. Trial Court has failed to appreciate that the property bearing no. F293, Madipur, New Delhi, belongs to the mother of the appellant and she has debarred the appellant from her properties. That the complainant has not prayed for interim residence order under Section 23 of The Act. It is prayed that in the present fact and circumstances the order of the Ld. Trial Court may kindly be set aside.
5. The respondent no. 1/complainant has levelled the allegations that the appellant is a man of means and doing the work of hair stylist in a well known saloon and is earning not less than Rs.40,000/ per month. That the respondent no.1 is also having ancestral property which is situated at Madipur, New Delhi.
6. The appellant has placed on record a salary certificate stated to be issued from his employer. The appellant in his affidavit of income and expenditure has admitted the monthly income of UID No.54593/2016 Kapil Vs Komal Devi & Another 4of 8 5 Rs.8,000/.
7. In the present case the existence of the domestic relationship between the appellant and the respondent is not in dispute. It is admitted fact that the respondent no. 1 is the wife of the appellant. The appellant has fails to disclose any prime facie income of the respondent. The Ld. Trial Court has considered the existence of the ancestral property and social status of the parties and also considered the provision of The Minimum Wages Act. The Ld. Trial Court after considering all the factor has assessed the monthly income of appellant @ Rs.10,000/ per month and granted Rs.3,000/ per month for the petitioner and Rs.2,000/ per month to the child of the parties. The Ld. Trial Court has assessed the income as Rs.10,000/ based upon the facts and circumstance of the case. The said assessment is based upon the cogent reasons as the Ld. Trial Court has considered the admitted income of Rs.8,000/ and provision of The Minimum Wages Act and existence of ancestral property and social status of the parties. A court deciding the quantum of UID No.54593/2016 Kapil Vs Komal Devi & Another 5of 8 6 compensation at the initial stage needs to do some guess work, based upon the facts and circumstances of each case because it is not possible to ascertain the actual income of the parties so easily. The general tendency is in existence among the parties to conceal their income from the court for the obvious reason. The appellant has failed to disclose any apparent illegality or infirmity for the assessment done by the Ld. Trial Court. The Ld. Trial Court has awarded the interim maintenance of Rs.3,000/ per month to appellant which is on the very lower side or extremely reasonable.
8. In the present facts and circumstances, I am of the considered opinion that there is no justified ground disclosed in the present appeal for interfering in the interim maintenance order passed by the Ld. Trial Court on 04.10.2016.
9. The appellant has also challenged the'residence order' passed by the Ld. Trial Court on the ground that there was no such prayer made by the respondent. However, the perusal of the application under Section 12 of the Act filed by the UID No.54593/2016 Kapil Vs Komal Devi & Another 6of 8 7 respondent/petitioner itself falsify this submissions made by the appellant. The respondent/petitioner in her complaint under Section 12 of the Act has specifically prayed for grant of the residence order under Section 19 of The Act. Therefore, this submissions made by the appellant is contrary to the record.
10. It is not out of place to mention that the appellant has challenged the residence order on the ground that the said property belongs to his mother who had disowned him. The Ld. Trial Court has already recorded the findings that the said property is a shared household/matrimonial home of the parties. The appellant has failed to place on record any material to rebut the fact that the said property is not a shared/matrimonial home of the parties. The residence order is also not challenged by the mother of appellant, whom he claim to be owner of the property. Hence, there is no illegality or infirmity in the residence order passed by the Ld. Trial Court.
11. In view of the above, the present appeal filed by the appellant against the order dated 04.10.2016, by Ld. Metropolitan UID No.54593/2016 Kapil Vs Komal Devi & Another 7of 8 8 Magistrate (Mahila Court01) West, Delhi, under Section 29 of The Act, is hereby dismissed.
12. Appeal file be consigned to record room.
13. TCR be sent back along with copy of this order. Announced in the open court today i.e. 21st March, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.54593/2016 Kapil Vs Komal Devi & Another 8of 8